Vermont Legislature SmartTranscripts:

[Kenneth Goslant (Clerk)]: I know. Alright. Get chicks out. We're back

[Martin LaLonde (Chair)]: the judiciary committee this Yep. At the Lunar's Day morning, April 9, and continuing to take testimony at S 193. We have Defender General here to testify next. So over to you, Matt.

[Matt Valerio (Defender General)]: Thank you. I'm Matt Valerio, Defender General. This topic and this concept has been, I would say, the bane of my existence ever since hurricane Irene washed away our forensic facility. And I'm sure it's been a frustration to everybody who used to take advantage of that facility, both from the state and the patients and the advocates and everybody else. And to be honest, we've been we, meaning the state, has been struggling with this ever since. Haven't had a legitimate forensic facility. And I have said for years now that the defender general's office has supported the creation of a forensic hospital for the treatment of individuals involved in the criminal justice system. And the key to this is that the facility must be implemented constitutionally, not that we don't need one. Not that you know, the biggest problem, I I think, honestly, is, before I even get into any of the details, just looking at it from a 30,000 of view, Many states have these. Almost all states have these. They are very expensive to do right. Right? And we have not been in a good position to be able to do it right and spend the money we need to do it. To do it right, they have to be secure, and they have to be focused on treatment and the physical and mental rehabilitation of the individuals who are subject to the mental illness or condition that puts them there. To be constitutional, they cannot be operated in a manner that is akin to incarceration. These are not jails. These are not places to warehouse people who we think are dangerous. These are places to treat individuals with mental illness to the extent possible and put them in a position where either they can go to trial or, if they are never really going to get to the point where they are competent, if it's a competency issue, to get them to the point where they are no longer a danger to themselves or others in the public and that their mental health needs are met and managed. If also, similarly, but not the same for people who are found insane by a court or a jury, they are not a substitute for punishment. They are not supposed to be incarcerated because they are not legally responsible for their actions at the time of the event. Very difficult for people to separate the damage that gets done in some of these cases from the legal requirement that we don't hold people who are mentally ill responsible for their actions in criminal court. Now that having been said

[Martin LaLonde (Chair)]: Kenneth has a question.

[Kenneth Goslant (Clerk)]: Yeah. Good morning, man.

[Kenneth Goslant (Clerk)]: Good morning. Were we was the state successful in in in handling the guidelines of what you just said

[Kenneth Goslant (Clerk)]: before Irene in Waterbury?

[Matt Valerio (Defender General)]: In general, yes. Yeah. I mean, there's always a particular case where they didn't, but, you know, those folks had the representation of counsel, and they were litigated just as they would be in any facility. Everybody who gets put in a place kind of against their will has the right to counsel, and they have the rights to get vindicated in the court. But I would say yes.

[Kenneth Goslant (Clerk)]: So and and just call

[Matt Valerio (Defender General)]: If we could plot Waterbury back where it was and or anywhere, just we're good to go.

[Kenneth Goslant (Clerk)]: So does this bill kinda or come close to what we had in Waterbury?

[Matt Valerio (Defender General)]: Not really.

[Kenneth Goslant (Clerk)]: Not really? Okay. Alright.

[Matt Valerio (Defender General)]: Almost not at all.

[Unidentified Committee Member]: I would say.

[Matt Valerio (Defender General)]: We were doing good. You know, the the problem is that this the destruction of Waterbury at the time kind of were open, old wounds, in a sense. And there are people who, you know, looked at this as an opportunity to do things differently. That's not necessarily a bad thing, but you still have to comply with the, you know, the law about what these facilities are supposed to do. And and so I just wanted to talk about a few things. Is that Thank you.

[Kenneth Goslant (Clerk)]: Yeah. Thank you.

[Matt Valerio (Defender General)]: I'm gonna direct your attention to page three of 16. Subsea line. I believe it's like five, five and six. I've reviewed I I used to do a lot of these cases right away when I was in private practice, oddly enough. And some of kind of the more high profile ones that have ever been you know, they've actually created Newmont, Vermont. It's probably one of the reasons I have the job that I have. And my appellate division, and I agree with them because I want them to look at it, is concerned about the constitutionality of five, six, and seven lines five, six, and seven to sub c.

[Kenneth Goslant (Clerk)]: What page did you say? Page three.

[Matt Valerio (Defender General)]: This section seems to violate the Jackson versus Virginia standard that basically says, that you can you can detain somebody who's incompetent in two ways, either by traditional civil commitment process, or you can detain them for a duration that bears a reasonable relation and for a reasonable time for that person to restore competence or to determine that there's no substantial probability that they will attain competence. And this seems to be completely contrary to that to that because it doesn't focus the attention on that time frame. It doesn't talk about the the duration in a manner that is less than open ended. If someone is incompetent, they ultimately and they have no likelihood that they're going to be found competent to stand trial in criminal court, the state then has to move to a civil commitment system outside of the criminal justice system, or they have to work quickly to restore their competence or did and and and as part of this, they have to work quickly to determine what their competence and, whether they will ever become competent. The whole point of the Jackson case was the criminal justice system would not be a mental health system. What we can't do is if somebody still has the presumption of innocence while they are incompetent, and we can't lock them up indefinitely because they are. So we have to move into essentially morph into the civil justice system and the civil mental health system. The there are a bunch of models or that talk about I'm just gonna give you a kind of a collection of statements from various sources. The federal statute, nine UFC forty two forty one, says that the feds can only hold somebody securely on a finding of incompetence for four months, and that can only be extended if the court finds that they're about to regain competence. The ninth circuit says that, this was a habeas case. Because they were held in a facility for competence restoration and didn't get competence restoration services right away, the fact that the services weren't provided within days of detention meant that the court treated the detention not as something for treatment, but for a nontreatment purpose, I e, a criminal justice purpose. Ninth Circuit also ruled that wholly incompetent people in jail for periods of more than seven days while awaiting a bed in the state hospital was illegal because the jails are not suitable for competent re restoration. The state of California has a two year maximum for incarcerating someone for a competence restoration. The California Supreme Court held that there was a hard limit, and and to allow courts to extend the limit would violate the fourteenth amendment of the constitution. They can move for traditional civil commitment at the two year mark but can't continue competence detention. Or the supreme court ruled that someone who doesn't regain regain competence within five years must be released or civilly committed. The bottom line is that there can't be an indefinite hold on somebody to attempt to get them to be restored to confident confidence. And the periods are relatively short. They are not indefinite, and they have to bear a reasonable relationship to what treatment should occur to get them to competence. And it is not something that is relative to the length of the what the sentence would be or the length of the severity of the cry or any of that. It has to do with treatment modality. Right? And that's one of the kind of the flaws of this bill as a whole is that it doesn't focus on those due process requirements regarding, how quickly and what happens next when somebody is found incompetent and not likely to be restored to confidence.

[Unidentified Committee Member]: The Oh, yeah. I thought

[Unidentified Committee Member]: thank you for pointing that piece out. And I guess I'm curious that if there was, additional language that somehow incorporated, civil commitment as an option, would that help to address that?

[Matt Valerio (Defender General)]: There are two things, in my view, that would have to be done. One is that you would have to establish a time frame for confidence restoration that is short, not indefinite, and that it in the event that competence isn't established during that time frame, that then the state would have to move towards civil commitment. So those are kind of the two stages that seem to be missing, and particularly the time frame is is the is the issue. Because the Jackson versus Virginia case, it's pretty clear, US Supreme Court case, that you can't basically say, well, we're we're holding them and and attempting to return them to competence, even the kind of the hard part about mental illness is it's not it's not really it doesn't interface really well with the criminal justice system. People wax and wane in their mental illness, and they go into competence. They go out of competence. And it it could be a daily thing. It could be a monthly thing. They can be fined for a while. And then depending on how they are know, what's on, we see this somewhat regularly. And it's the nature of mental illness. And so, you know, it's it's not easy to do. But some courts and the federal law has established you know, the federal law does the does the four month, which seems short enough. Others say six months. Others say, you know, you can't hold somebody in jail. You gotta get them into a forensic facility, like, within seven days if they're found incompetent or if there's a question of confidence in restoration. So the bottom line is hard guidelines in the criminal law are difficult, but if they're short enough, you don't violate due process. That's the you know, it's kind of the the ease that sets the balance. There's a way to make it amorphous and and basically mirror the language of Jackson versus Virginia. However, that can sometimes be you know, I I I'd rather see a short, hard deadline as opposed to litigating, you know, that standard.

[Unidentified Committee Member]: Do you have this the Jackson v Virginia, like, standard language? Yeah. I mean,

[Matt Valerio (Defender General)]: I kinda quoted it, but I

[Martin LaLonde (Chair)]: Do have the citations, Laura?

[Matt Valerio (Defender General)]: Yes. And I know ledge counsel does too because I've because I've discussed it with him.

[Martin LaLonde (Chair)]: Oh, okay. Then that's fine. We'll get that

[Matt Valerio (Defender General)]: for just Yeah. This I have yes. I do have all this stuff. Lines fifteen and sixteen fifteen, sixteen, 17, same page, really the same issue. Again, if competency to stand trial is not restored and cannot be restored restored, the mental health case must be transferred to the civil commitment arena, and release must be subject to those standards. And in the most general terms, does their mental health continue to make them a threat to themselves or others? A person cannot be held indefinitely to restore competency if that is not achievable within a period of time, a reasonable period of time under under the Jackson case, and lots of other lower court cases. And it cannot be predicated on the resolution of the criminal case alone or the what the sentence would have been in the criminal case alone. Once you get past a reasonable period of time to restore confidence, the criminal case becomes irrelevant. You have to move to the civil commitment.

[Unidentified Committee Member]: So I'm just trying to understand all this because I get that we have to add a civil commitment off ramp. We don't have a time. I guess I don't understand what that all entails. Like, I'm assuming it's another court hearing and doing all of that, but that the person could still be in the forensic facility while that process is is being done to determine if the civil commitment the insurance, not just a one day make the decision.

[Matt Valerio (Defender General)]: Right. Could be. They could be in the forensic facility during that period of time. Once you get in the civil arena, the time frames and the like change. Yeah. And we can't just pluck some you know, you have to kind of forget about the criminal case once you get into the civil commitment arena. States do these in a lot of different ways. And this is the hard part. And this is these things are really expensive when you to civilly commit somebody. It would involve a lot of experts. Connecticut has a board of civil commitment that is all either medical doctors, psychiatrists, or PhD level psychologists. And they have hearings about civil commit commitment and release. You know, we've kind of gone down we did this with sex offenders some number of years ago, where we rejected the civil commitment route for sex offenders, primarily because we knew, like, each case you know, this was back during the Douglas administration. And we had that whole rewrite of all the sex criminal sex laws. And they were talking about $2,000,000 a case, just a litigator. And they're like, Yeah, we don't wanna go that route. And so that's when we did things like indefinite probation, life maximums on all the sex crimes, that kind of stuff, rather than having somebody have a, you know, two to 10 sentence. And then when they're getting ready to max out, you'd have to go and civilly transit them. They just made everything in life maximal, which, you know

[Unidentified Committee Member]: So are you saying that Vermont doesn't have a robust civil commitment infrastructure?

[Matt Valerio (Defender General)]: It has well, it has a process, but it doesn't have one that is typically used in these circumstances. And, again, it's expensive. And that's, you know, that's sure that the sure that Waterbury, when it was operating, was expensive. Kinda leads me to another issue, and I'm an overlay of this whole thing. It's interesting. It's it's at the end of the bill. I'm just gonna ask the question, which I'm sure everybody else is asking too. Why do we have the commissioner of corrections overseeing this? The commissioner of corrections is really good at locking people up and observing people on probation. They do a really bad job with the medical care and mental health care and treatment and all those sort of things. We're putting up what has to be constitutionally a treatment facility under supervision of the Department of Corrections. Why is this not under the Department of Mental Health? I don't understand it. Unless what we aren't really doing is treatment and rehabilitation. What we're really doing is isolating these people indefinitely, which the bill suggests is a possibility. That's you know, I wonder about that.

[Unidentified Committee Member]: I just to and it's not just you, Matt, who's

[Martin LaLonde (Chair)]: brought this up. I think it's

[Unidentified Committee Member]: probably the fourth or fifth time that I've heard this I can imagine. In testimony. So not, well, specific to the point that I'm leading up to, but it's probably the fourth or fifth time that has been alluded to or said explicitly that DOC is not capable of administering the care for these patientsinmates. Because if they're if they're going to be in the forensic facility, there is the understanding or the reality that they probably had had some kind of altercation or criminal history. So, again, not specific to you, but what evidence do we have that DOC is not capable of administering this care?

[Matt Valerio (Defender General)]: My office, has the prisoners' rights office under it, and we are responsible for dealing with all conditions of confinement, relative to people in the custody and care of the commissioner in corrections. And one of the biggest problems and I haven't been called in in a long time to talk about the medical care and mental health care that is going on in the Department of Corrections. To say that it's marginal is charitable. They have extraordinary difficulty every time they put it out to bid. And I've talked to many every commissioner in corrections for the last twenty five years, where we've had contracted services. And it is with what they're doing right now, forget about this. It's not done well. And in many instances, I'm not saying the majority, but in many instances, it's done very poorly and negligently. That does not, based on my experience, inspire me with confidence that they would be able to do this.

[Unidentified Committee Member]: So, again, I and I don't mean to I'm not trying to push back No. No. And Feel free to have you as the scapegoat for for all these you know? But what I'm hearing again is broad generalities, and I'm looking for something, like, very specific.

[Matt Valerio (Defender General)]: I could come in

[Unidentified Committee Member]: I would love quantitative data. Like, how many offenses, how many reports are filed, how many instances are there? And, again, non attributed, anonymized anecdotes.

[Matt Valerio (Defender General)]: I could I would love I could literally come in here with reports this thick.

[Unidentified Committee Member]: Bring them in. I would love it.

[Matt Valerio (Defender General)]: Seriously. And my

[Unidentified Committee Member]: because every time I ask for this, not just for you, but of other witnesses, there's never any follow-up. And so it's a personal point of frustration because I keep asking me to come? I I'm not I'm not being facetious or flippant. Seriously? I would love it because I keep asking for this stuff.

[Matt Valerio (Defender General)]: Shut a day aside, and I would and I'll be here and I'll be here the entire day.

[Unidentified Committee Member]: I would love it.

[Matt Valerio (Defender General)]: You know, we're the last period of time, and I'm not trying to be flip here, but we're literally stacking up bodies like cordwood coming out of the air. And every single one of those, we are doing investigations on, and case after case after case, we're seeing

[Unidentified Committee Member]: You're seeing deaths in custody? Yeah. Like Again, let's see all this.

[Matt Valerio (Defender General)]: I have four in the last month, and I'm getting reports back. We get them reviewed by experts. We the DOC has its own internal reports, many of which agree with our reports, that indicate that the medical care has been negligently provided. And those are in the deaths. Over a third of the work that the prisoners of rights office does now is is trying to get people the medical care that they need. They run out of they run out of medicine that is absolutely essential, like antibiotics, insulin. People who are on MAT are not getting, consistently getting their medications. So, you know, these are medicines that you have to take over a long period of So when that doesn't happen, you end up with severe problems. DOC will legitimately say that we have a difficult population that comes in with a lot of medical problems. They do. And but what they have also is a system that doesn't is not robust enough to respond. They advertise for a medical contractor and they get one applicant, they're pretty well stuck as to what they're gonna do when they have one person who's willing to do the work. And the one person is the person they fired or one company is the person they fired two companies ago, but now they've come back. Because the one that they just had, they just fired. And, you know, it's it's a very small number of companies that do this work, and we we are in a bad cycle with that. And I've talked to all of the commissioners about it. You know, I've said many times I have incredible respect and admiration for the work Nick Demo when he was here. Mhmm. Andy Pulido, Lisa Menard, they all tell me the same thing. I don't know what to do. I don't know what the answer is. Because they're they have very limited options. Now I'm not ascribing to the blame. I'm just telling you what's happening. And so

[Unidentified Committee Member]: And, again, I I you aren't I'm not trying to make you the scapegoat of this, but if we keep hearing these very broad generalizations and, again, it's not just on this topic, but in this committee room in general Mhmm. We keep hearing these things, and there's never any facts to back it up. So it sounds like you are in possession of the facts. Mhmm. And I would love to just sit down, whether it's you and I or if there's a smaller group of us that sit down with you. I think that'd be very productive.

[Matt Valerio (Defender General)]: Yeah. The statute says that we are responsible for investigating any serious incident or death or hospitalization that occurs as a result thereof for forty eight hours or more in the Department of Corrections. We also are responsible for all conditions of confinement issues, and that includes medical care. And so I have reports going back many years regarding that. We're there are two ways that we handle it. Primarily, I go to the commissioner of corrections and say, problem, problem, problem, problem, and they go, uh-huh. And then somebody files lawsuits, and that's how they resolve. The other thing that it says to do is to report in an anonymous way to the Joint Justice Oversight Committee, which I have not been called before in many years to

[Unidentified Committee Member]: Who's on that?

[Matt Valerio (Defender General)]: A selection of people from here, from House Corrections Institutions, Senate, judiciary. Just members of

[Unidentified Committee Member]: it in here?

[Matt Valerio (Defender General)]: Oh, yeah.

[Martin LaLonde (Chair)]: So I think last year or the year before, there was a lot of health well path was in a form of one occasion, talking about the service. And they also were considering whether to bring it in house. And that was before. I don't remember if it was last year or the year before.

[Matt Valerio (Defender General)]: Yeah. That's the way it used to be many, many years ago. It's kind of interesting that there's a whole conundrum here that DOC has. I don't envy them trying to solve this problem. If I were in if I were commissioner of corrections, back in the day, they had state employees providing the medical care. When they decided to go to contractors as opposed to state employees, you brought contract administration in. They might have a medical director who for the contractor. And they ended up hiring all the people who used to work for the state to administer the care for the for the contractor. So, you know, to quote an old song, you know, beat the new boss same as the old boss. But the the bottom line was it didn't change. And here's the other thing that is very interesting. While people do cycle in and out and never come back, by and large, when you get a new contractor in, they do the same thing. They hire the people who used to work for the old contractor who are willing to do the work for the new contractor. Most people, I'm not saying at all, who provide medical care in correctional facilities didn't go to nursing school or medical school to say, I wanna provide medical care in fracture facilities. They had something else in mind, but I ended up doing this. And all kinds of reasons. Sometimes and I don't even wanna go into all the reasons. But the bottom line is it is difficult, just like it is difficult to hire corrections officers. It's difficult to hire medical staff, nursing, and the like to do that work. And so it's a conundrum. It's really, it's really tough. And so all I'm saying is, do I have reason to believe that it might be difficult for the Department of Corrections to implement a forensic facility under their umbrella when that is not their primary mission? Yeah. I at least believe that. And it's based on experience, not just the label that somebody is the commissioner of corrections. I guarantee you that the commissioner of mental health knows more about that area than John Murad does.

[Martin LaLonde (Chair)]: Tom, and then two

[Kenneth Goslant (Clerk)]: I was just curious if one facility stood out more than any of the other.

[Matt Valerio (Defender General)]: Only thing I can say is that they've the the the primary infirmary is in Springfield, I would say. So it'd be yeah. So it so the worst

[Kenneth Goslant (Clerk)]: That's right.

[Matt Valerio (Defender General)]: Cases That's right. End up there. But it's kind of unfair to point and say, oh, it's Springfield, because it's not really Springfield.

[Kenneth Goslant (Clerk)]: No. And it's not really transferred.

[Matt Valerio (Defender General)]: It's transferred there. Yeah. They get you know, when they get in a bad situation, they, you know, they end up you know, medically, they end up at Springfield. Do people die in other facilities? Yes. Is medical care spotty in other facilities? Yeah. But the more severe cases are in Springfield. Yeah. You know, women's facilities, you know, in Chittenden County, and that's a little bit of a different situation too, because, first of all, there's way less of them. But it's also, you know, of the women who fall into this, it's obviously all gonna be in that facility. So there are ways it can get segregated out. But, you know, I don't know that it's worthwhile, really, to say, Oh, it's Springfield, because that's the magnet. You know?

[Kenneth Goslant (Clerk)]: You think of the Wilmington facility, they're getting more help because the hospital is right in close proximity to?

[Matt Valerio (Defender General)]: No. I really don't. You know, in Springfield, you know, they they use Dartmouth Oh, yeah. Which is pretty close. Yeah. You know, not as close as Burlington, but, you know, it's this is a very, very difficult issue that doesn't get a lot of airtime. So, anyway, that's my that's my concern about under that umbrella. I don't know why the Department of Mental Health would not have this facility.

[Kenneth Goslant (Clerk)]: You talked about Waterbury earlier, I remember right, your opinion on it was it was ran fairly well, maybe not perfect, nothing's perfect. So was Waterbury Department of Mental Health a Corrections?

[Matt Valerio (Defender General)]: Mental Health.

[Kenneth Goslant (Clerk)]: I don't know why this is Corrections. Do you know why it went to Corrections? Other than maybe somebody was concerned about the security end

[Matt Valerio (Defender General)]: of it, but, I mean, that's

[Kenneth Goslant (Clerk)]: what goes through my mind.

[Matt Valerio (Defender General)]: Yeah. And, you know, if that is the concern, then what you're looking at is effect akin to a correctional center as opposed to a Kendall Hospital. But the you can have, and they did run-in Waterbury, a secure mental health facility. All under EHS, as DOC is also. But, you know, I maybe they're changing I I I hate to speculate. I have all kinds of I hate to speculate.

[Unidentified Committee Member]: Yes.

[Matt Valerio (Defender General)]: It does concern me, though. If if let me just think of think of it this way. Pretend I'm an advocate. I'm not defender general. I'm an advocate on the outside working for disability rights or, you know, one of one of those groups. And I and I say, hey, This is not this isn't constitutional. This is this is a jail. What's one of the first things I'm gonna point to? If it's supervised by the commissioner of corrections, And then we'll go down the rest of the list as to we wanna hold people indefinitely. We want to you know, we have we're holding people based upon the duration of their sentence as opposed to their mental health needs. They can start to check the boxes in the bill as to me proving that this is actually a correctional center and not a mental health treatment facility, which is what it needs to be. So I'm pointing out these issues to try to help. And whatever happens, happens. And then the result is gonna be what it is. So You know, we should

[Kenneth Goslant (Clerk)]: say if it didn't change, it's gonna be under corrections. Yeah. And I think what from what I just after what you said is that the the the guts of the bill lean more toward corrections than it does toward mental health? That's what

[Matt Valerio (Defender General)]: it looks like. It's about hey. I get it. This is about public safety. This is not about rehabilitation of the mental health. That's what this bill is about. And, you know, if I'm if I am you know, the public might look at it and say, good. That's exactly what we want. I'm just trying to tell you to follow the law, and that's not what it's supposed to be. So

[Unidentified Committee Member]: So, Angela and Danni. On that follow the law thing, It's our understand or I my understanding that the Department of Mental Health statutorily cannot consider public safety. Is that do I have that wrong?

[Matt Valerio (Defender General)]: Well, they have to they still have to review the issue. It's not public safety. They have to review, is this person a danger to themselves or others? Are they a danger to the public? Can we create can like, if somebody is hospitalized and they are seeking release, can the department create conditions of release on an order of non hospitalization that are sufficient to ensure the safety of the public and the safety of the individual? So if you take your medication, if you live where you're with supports, if you maybe have a job, if you actually have housing, all of if these things they're complied with, their opinion from a medical standpoint is that this person is fit for release. Because they stabilize them on the inside, whether it's medication or other treatment, whatever it is. And then they are fit for release. Here's the hole in the system. I've brought this up many times. If you are and I'm gonna make it akin to corrections. Right? When you are released on furlough or you are paroled, someone has made a determination, subject to conditions, that this person is fit for being in the public. We do that same thing in the Department of Mental Health. When you're released on the corrections side, there are probation officers, and there are probation parole officers who check up on you, who make sure you're doing the right things. And if they don't, they violate you and drag you back in. That doesn't exist on the mental health side. What do they do? They rely on law enforcement when the people go off the rails to arrest them again and start the process all over again. I've suggested for over five years now that the Department of Mental Health needs a unit that is akin to probation, but not probation, staffed with mental health social workers who affirmatively, which doesn't happen now, affirmatively checks in on the people who are subject to orders of nonhospitalization to ensure that they are taking their medication, that they have housing, that they are not decompensating. And if they are violating those conditions, the Department of Mental Health could then file a motion with the court to hospitalize that person or to develop other conditions that would ensure that they are safe and not decompensated. That does not exist today.

[Unidentified Committee Member]: Right. And this bill proposes that DOC would be responsible even for that. Right.

[Matt Valerio (Defender General)]: That's not the that is not the worst part of the bill. The problem is and I didn't even you know, I was gonna say when I got to that point, that we're getting there. This is what should be happening, but it shouldn't be probation and parole officers doing it. It should be people trained in mental health, social workers with mental health training who are looking in on mental health patients. It's not just a matter of, are you compliant? The question is, are you decompensating? So if you're not taking your medicine, we understand that might lead you to decompensate. If we see you, even if you are taking your medicine, not doing well, then we have to address that. Change your medicine, increase your medicine. Maybe we have to hospitalize you again for a period of time. But they're gonna look at it from a medical, psychological need standpoint, not about what corrections officers typically look at, which is compliance as opposed to mental health. They're they are distinctly different issues. And so, again, I don't necessarily trust that the Department of Corrections is going to look at it through the right lens when they're dealing with the mentally ill. All they will see is somebody who's not complying, which leads you back to the issue of, are we doing treatment here, or are we doing something else in any event? Happy to answer any of the questions. I wanted to

[Unidentified Committee Member]: Ian, just two questions. One, did you raise these issues on the senate side on this bill?

[Matt Valerio (Defender General)]: Mhmm. Yes. And actually, the senate took out a bunch of stuff that was significantly more egregious than what you've seen. I'm not by the way, this is 50 better. I don't wanna say a 100%. Because if it was a 100%, probably I would have wrote it. But But it's 50% better than what it was until I was introduced. Because what I would do is write it strictly to just comply with the law. I I wouldn't have any particular policy reason to do anything. Honestly, our current law, as it exists, is not bad. We just don't have the means. We don't have the facility anymore to comply with it. And so now we're creating a thing because we're not gonna be building anything. We're we're dedicating a wing of some correctional facility to house these folks. Again, it's very washing away water, Barry, was devastating. Devastating in in cost and you know, it's hard to even explain.

[Unidentified Committee Member]: And that was my other question, which is as a newbie legislator who also wasn't really involved in my other work before Irene. So basically, the reason we're not just doing what we did before Irene is because we don't have the money to basically build a new facility that would do the same thing that it did before if it was working fairly well. I understand that there are

[Matt Valerio (Defender General)]: issues with any other institution. I would ask somebody from the administration, but I that's my observation. I think that's right. And even if we went back to the other other thing, I still think this suggests, I keep bringing it up, about the social work people who are akin to probation officers, but looking at it through a different lens, Waterbury could have benefited by that structure. The other thing is this is not like probation and parole. We don't have thousands of people. This is a small group of people. This is not this is not big. You don't have to have, you know I don't know how many ality probation officers there are. I'm guessing it's more than a 100. You wouldn't have to do that. You might need six. You know? So in any event, I do you want me to talk a little bit about the bill?

[Kenneth Goslant (Clerk)]: Yeah. That'd be

[Matt Valerio (Defender General)]: great. I'm I'm happy to talk about policy and history and all of that. But

[Martin LaLonde (Chair)]: No.

[Matt Valerio (Defender General)]: It's it's helpful. Let me Optics. Maybe I'm reading this wrong. Page four of 16, lines nine, ten, 11. This is where you have the hearing. The commissioner shall notify the court where the person was committed upon return of the person to the forensic facility. And upon readmission, the court shall hold a hearing at which the state's attorney shall have a burden of proving by clear and convincing evidence that the person is not competent.

[Unidentified Committee Member]: Yeah. Well, it's flag that is

[Matt Valerio (Defender General)]: Okay. Package. Yeah. I'm figuring I mean, I'm kinda a few people down the road here, but I think all you gotta do is take out the knot. But sometimes I read things wrong, and and I just if I was wrong, I would just wish someone would tell me. But, yeah, I mean, I I could have read it wrong. Like, there was sometimes there's a double negative in there or something where it's not not incompetent or something. And It's

[Kenneth Goslant (Clerk)]: not you're frank. That's the humor. The humor or something.

[Matt Valerio (Defender General)]: I've had a little note on section two, page five, lines fifteen, sixteen, and 17.

[Kenneth Goslant (Clerk)]: What what page did you say, Rob?

[Matt Valerio (Defender General)]: Page five. Lines 15 through 17 or 15 through 18. In that sense. I'm not just a little odd. I don't really know. See, one of the things about these mental health cases, and this is where when we are handling these, sometimes, from a client's point of view, I'd rather just be convicted of a misdemeanor than go through all of this hoo in the with the Department of Mental Health and be declared incompetent and all of that stuff. Because I could be held way longer, you know, on a misdemeanor for being incompetent than I could be if I just ate a criminal charge and accepted a fine or even was put on probation, or even served three days in jail. You know, people don't serve a lot of time on misdemeanors, if at all. And so I just wanted to bring up that you if you create an egregious situation for people with relatively minor crimes, they're just gonna eat convictions, notwithstanding their mental health situation. And they'll just stand there. Do you agree the state could have proved its case beyond a reasonable doubt? Do you not contest the state's case? Yeah. Okay. You know? We'll send a suit of time served and a $100 fine. Thank you very much. And now that mental health person is up there, walking out the door. Seeing this time and time and time again. Happens all the time.

[Martin LaLonde (Chair)]: So there's a question there.

[Kenneth Goslant (Clerk)]: Or you just answered it. It it happens very pre frequently. Yeah.

[Matt Valerio (Defender General)]: I mean, I can't say all the time. It's not every day. But but, know, of these types of cases, and a lot of the the cases where you get with the the the people who have these mental health problems, it's the high profile ones are the murders and sex cases and that kind of stuff. The vast majority of them are this kind of thing, where they're causing problems on Church Street, you know? And that is totally different animal. Okay. So what do I have to say here? You know, it's interesting. I do these things and I put the on my computer, I put my notes in the side of the PDF, and I it looks great. And then I print it out. I can't read the freaking things. They're it's so it comes out, like, one tenth the size of what I that I had. And, I mean, these are only glasses. These are only well, these are only one point o's, but they do work. It's just, like, it's frustrating. Like Not very well.

[Kenneth Goslant (Clerk)]: Page six. You gotta borrow some tools?

[Matt Valerio (Defender General)]: I'm good. I'm good. These these work fine, but it's I I I have good eyes. I so I take them off, then I can't see. I put them off. Page six and lines five and six. This, to me, kind of misconstrues or conflates the issue of sanity versus competency, where a person's charged with an offense punishable by life by life sentence and is found not do not guilty by reason of insanity at the time of the offense, charged, but oddly written, shall be committed to shall be committed to the forensic facility. Remember, an insanity defense is a is like a Polaroid. You know what a Polaroid is?

[Unidentified Committee Member]: A camera?

[Matt Valerio (Defender General)]: Yeah. You know. A snapshot. It's a it's a moment in time where somebody maybe had a psychotic break, maybe had some problem with the whatever went on. Your trial that's gonna go on may take place two years later, and the person may be fully competent, not suffering from a mental illness at all, but raised as a defense in their trial that they were insane at the time of the event two years ago. I'm wondering why the default, without any proof of their current mental state, is that somebody who is not guilty by reason of insanity for an incident that snapshot in time that took place remote to the trial or the hearing, why the default is that they go to the facility. If the reason is because of the alleged offense, that's a constitutional issue. If the reason is they are continuing to suffer from a major mental illness, that is legitimate. Because now you're talking about the civil commitment of somebody with a major mental illness at the in the present, who may and we can prove this by evidence of what went on two years earlier at the crime, but that's part of the evidence. I just wonder I I wonder why the default is that as opposed to, you know, what what you end up with. And maybe it's a bit semantic because it does provide a provide a process later, which is akin to civil commitment, but with kind of different standards.

[Unidentified Committee Member]: What's the question about Yeah. Go ahead, Doug. I wonder, Matt, if the default was put if that was the default because the hearing, you know, in this in the language as written, hearing happens within forty eight hours, maybe the default was like, yeah, that's not you know, so it felt Yeah. Safe enough doing that.

[Matt Valerio (Defender General)]: Yeah. Close enough. And then I I just raised I just raised the issue because I the next question comes to that next section where it says section two prior to the date of the hearing. The court shall order a forensic risk assessment and then includes various things in it that are not the same things as you would get in a civil commitment proceeding. I think I mentioned that

[Unidentified Committee Member]: it's not gonna happen in forty eight hours.

[Matt Valerio (Defender General)]: But look very similar to what you would do in a pre sentence investigation. And so what I think sub two should have a should not say a forensic risk assessment. What it should say is a forensic mental health assessment.

[Unidentified Committee Member]: What do you think about the forty eight hours? We've heard testimony that it should be sixty days. We've heard ten days.

[Matt Valerio (Defender General)]: Well, I think if your default is gonna be that you're gonna immediately put somebody in a forensic facility, if as designed, I would feel better if they said, look, you're gonna be subject to the custody of the commissioner of mental health in a hospital for forty eight hours pending your pending this evaluation. And we have people on staff available to do this pretty much immediately, because these don't come up very often. I've I've told you before, maybe very recently, that nobody in the collective memory of the defense bar can remember any jury in the last fifty, sixty years that came back with a verdict of not guilty by reason of insanity. These are usually reached when the the court order evaluation comes back. This person was insane at the time. The defense will, you know, kinda rely on that. The state will say, I wanna have another evaluation. So they do, and their evaluation comes back and says, the person was insane at the time. And the sides say, Well, I guess the person was insane at the time. But now we go to the judge and present the two reports, and the judge says the person was insane at the time. It's effectively a stipulated or agreed to situation. It's not And there have been times when a judge alone has made that decision, because you waive a jury on the issue, and you present the evidence, court makes a decision. But a jury verdict Could it happen? Yes. And every year, this sort of comes up, and I will survey. I'll talk to Richard Rubin, who's been a lawyer for sixty years, and say, No, I've never seen one. You know, talk to old judges who I knew, No, I've never seen one. Nobody's ever seen a jury come back, because usually they get scared to death. I mean, I don't blame them. I did a very serious case years ago and tried what I thought was an excellent insanity defense. And the case lasted ten days. It was a kidnapping attempted murder case. And Mhmm. Alright. We got ten days of evidence. Jury's out. They've been instructed. I'm gonna get my I'm gonna drive through the drive through at Burger King and get myself some lunch to bring back to the court and sit and wait around, and it might take a day or two even before they come back with a verdict. I'm literally sitting at the drive through, and then my phone rings, and they're like, they gotta have a verdict. Like, what? Well, yeah, it was pretty obvious that I've got the, you know, insanity case come back, like, guilty on it. And I'm like, oh, well, oh, well, that didn't work. So probably two weeks later, I'm walking down the street, and this guy starts yelling at me from across the street. And I'm like, that you know, it's kind of doing what I do that gets a little unnerving. So I put my hand on my gun. No. I didn't. I so so the guy so the guy crosses, runs across the street, and I noticed that he a lot bigger than he was, so I wasn't that worried. And he said, Matt, Matt. I'm like, yes. He's like, you probably don't recognize me. I was on that jury. And he's like, oh, yeah? He says, I wanted to tell you, you did a really good job with that case. I'm like, I didn't feel that case because you guys were you didn't have a chance to go to the bathroom before you, like, had a birthday. Before? Yeah. That guy was crazy. You were never letting him out. And I'm like, alright. So what it said to me was I scared the hell out of him by showing how mentally ill the guy was. I mean, that is the issue with these kinds of cases and the general public. And it's why you don't have, like, jury verdicts that say, you know, unless it's disorderly conduct or something, but nobody nobody can even tell me one of those, because usually the state's attorney says, yeah. We're we're you know? They get diverted or whatever. So in the event that this ever occurs, this is going to be pretty well orchestrated, is what I'm saying. It's not gonna be like, oh, wow. A jury verdict just came back of not guilty. And it wouldn't say not guilty by reason of insanity. It would say not guilty. That'd be the that'd be the verdict. The the insanity defense is an affirmative defense that we prove. The jury doesn't say insane. It just says not guilty. But when you're not guilty, you get to walk out the door. That isn't how these happen. What ends up happening is they're kind of orchestrated. Everybody knows the person was insane at the time. And a lot of this stuff, like the evaluations and the like, would have been done. Everything would have been prepped. So this forty eight hour period doesn't really bother me. If people don't like This is, to me, if you extend it, it's because somebody doesn't like the result, and they're looking for another opinion to give a different result. That's okay. But the issue is, really, to me, the timeliness, like, practicality of how this works. If we have somebody on staff who's able to do these evaluations, then it's okay. Now these are not, in my view, gonna be the same as the competency evaluations we do by Teladoc and on computers. And they take months to set up. It's going to be something different when you're seeking to hospitalize somebody.

[Unidentified Committee Member]: And is this just a quick follow-up? I didn't realize. Is this this section pertaining only to jury verdicts?

[Matt Valerio (Defender General)]: It isn't, but it's both.

[Unidentified Committee Member]: Right. So it wouldn't be as infrequent as never.

[Matt Valerio (Defender General)]: Well, you could hope.

[Unidentified Committee Member]: Yeah. Okay. Just making sure.

[Matt Valerio (Defender General)]: And and all I'm saying is you asked me about is the forty eight hours too short, too long, too whatever. To me, because they are not jury verdicts, which come which you don't know what the jury's gonna do, These are things that everybody pretty much knows exactly what's gonna happen before you ever get to this point, because it's something the state knows, the defender knows, the judge knows. You've been working with this for quite some time. If you get to not guilty by reason of insanity because the judge has made that determination, everybody knows what's going on. And that forty eight hours shouldn't really be a problem. Okay. But, you know, I mean, it also does comply with kind of the time limits that are set in you know, it's actually it's it's one of the shorter ones. But, you know, I don't I don't think that it's not undoable. Yeah. It's not undoable. It is I can see why people might wanna make it longer, to be fair. The forensic risk assessment part is I wanna get away from the idea that we are just judging risk. What you need to be doing is judging what is the mental state of this person, what do we need to do, if anything, to make sure that they are not dangerous, that they are not suffering from mental illness. The first stage really has to be, are you currently suffering from a mental illness? Not were you charged with a crime that has is punishable by life by life sentence. It's are you suffering from a mental illness? And then you go through the other factors about about dangerousness. On page seven, this kind of just reads if you have a whole other shows talking about page seven, line sixteen, seventeen, 18. I know it's not actually the commissioner who is making the decision about what are the least restrictive conditions. Is there adequate care in a forensic facility? But shouldn't it be, like,

[Kenneth Goslant (Clerk)]: the Department of Health again?

[Matt Valerio (Defender General)]: If the commissioner of corrections doesn't agree with the recommendations of the doctor, would the commissioner, in his discretion, say there are no no conditions that would make this person safe? That would be contrary to civil commitment law, contrary to the due process required to hold somebody who has been pretending to be incompetent or Again, it's just you you don't want me fixing your car. And I have a doctor, but you don't want me fixing your car. Commissioner of Corrections probably, I think, could do a probably reasonably good job with Corrections. I don't know about this stuff.

[Unidentified Committee Member]: Oh, yeah. Thanks. So, Matt, I just have a question. If If an impacted individual is not diagnosed with mental illness, would EMH still take them? No. Right, so I mean, that's kind of where I'm My concern is that And again, I'm looking forward to seeing all the facts and the data to back up to substantiate what you're telling us about DOC and the concerns there. But is the quality of care argument a red hair Everybody's gonna this away from DOC to DMH when DMH, to me, doesn't seem that they have the resources or the ability to implement this? So I feel like it de facto has to be DOC.

[Matt Valerio (Defender General)]: Well, they did it for decades. They did it they did it and they're doing it now to some degree. I mean, what we don't have is a facility. You know? They staffed Waterbury. They did it then. I you know, can't we do it? It's a small number of people. I don't you know, this is where is this more about public safety than it is about mental health? Once you get

[Unidentified Committee Member]: I think it's equal parts,

[Matt Valerio (Defender General)]: public safety. You get once you get to the point where you are in the mental health arena, you are subject to different constitutional requirements. And

[Unidentified Committee Member]: But but you're but but to my point, if mental health is not if they're not diagnosed with a mental illness, and this is squarely in the realm of public safety, that answers the

[Martin LaLonde (Chair)]: question of why this has

[Matt Valerio (Defender General)]: to be DOC. Well, it also is the reason if they are not if they are not competent to stand trial, they it has to be. Right? Yes. We have to debate. Yeah. No, they have no, they have to be. If you are competent to stand trial, you can even have a mental illness and be competent to stand trial. But if you are actually deemed incompetent to stand trial, must have a major mental illness, and you must not be able to understand the proceedings or participate in the proceedings before you. So that issue of whether you are mentally ill is it is, period.

[Unidentified Committee Member]: But I think the issue of competency and that was a conversation that

[Matt Valerio (Defender General)]: we're we're mostly dealing with.

[Unidentified Committee Member]: Well, and that's and that's exactly right. And that was a conversation that we're having before, you know, in between sessions, is what it really gets to the crux of the question of what is incompetence and what how is that derived? How would you define it? I can tell you.

[Matt Valerio (Defender General)]: The laws sound very useful.

[Unidentified Committee Member]: So I think again, I think you're representing that viewpoint. I think there are probably It's not a viewpoint. Contrarian viewpoints

[Matt Valerio (Defender General)]: to that. It's not a viewpoint. I'm just telling you what the law is.

[Unidentified Committee Member]: But what would the administration say? Or what would public safety say?

[Matt Valerio (Defender General)]: Well, public safety is concerned about public safety. I'm concerned about following the law. And they're two different things sometimes, you know? If you're not competent to stand trial, you have a major mental illness, you're not you're not able to understand the proceedings that you are participating in, you are unable to participate or or work with your lawyer, you don't understand the role of the various individuals, and as a result, you're not subject to the jurisdiction of the criminal court because of your mental disease or defect, your mental illness.

[Unidentified Committee Member]: Okay? So I guess the

[Martin LaLonde (Chair)]: way we've been looking at that, just to clarify, is it isn't necessary it depends on how you're defining mental illness. It could be a developmental or behavioral Well, that's why like Dale.

[Matt Valerio (Defender General)]: That's where it's mental disease or defect.

[Martin LaLonde (Chair)]: Right. Or it could be a traumatic brain injury. Right. Could be a number of things, which I say may not fit in DMH,

[Unidentified Committee Member]: but may fit in Dale. Right. So right. Right.

[Martin LaLonde (Chair)]: So I just wanna clarify that.

[Matt Valerio (Defender General)]: That's fine. The bottom line is you can't understand or participate in a criminal proceeding against you. That's the key. So that is not and that person can be incredibly dangerous or not. The that's, you know, that's the that's the question. You don't jump from one to the next. That's when you get to that next stage of the analysis.

[Kenneth Goslant (Clerk)]: Right?

[Matt Valerio (Defender General)]: And I don't you know, there is a process, obviously, for commitment of individuals who don't fit under mental health. They fit under the Dale umbrella. So you have organic brain dysfunction or a traumatic brain injury or developmental disability or whatever, they fit into a different category, but the result is the same. And so those people still have to be treated, and they have to be they have to be restrained or detained in the least restrictive environment, subject to conditions that would make sure that they are not a danger to to public. I don't know how that falls under Department of Corrections. Yeah.

[Unidentified Committee Member]: But I guess too too in terms of you know, the bill is currently written. The bill that's currently written does have

[Kenneth Goslant (Clerk)]: a clinical care coordinator built in. So, I mean, these people are these inmates will be receiving care and treatment. The Department of Corrections currently has a clinical care coordinator and medical coordinator to do what it's doing now.

[Unidentified Committee Member]: Right, and so we're bolstering those resources, right? I mean, isn't that that's how

[Matt Valerio (Defender General)]: Maybe. All I'm telling you is our experience is that it is not something they do well now.

[Unidentified Committee Member]: Which is why we're allocating more resources to help them. You know, I think that that's kind of where I feel like the disconnect is and where I kinda take issues over there.

[Kenneth Goslant (Clerk)]: Alright. Where are the resources? The co the additional clinical care coordinator. One person?

[Unidentified Committee Member]: Better than the one that they have. I mean, we're talking about there's service gaps across the government. So I think if we're willing to allocate additional resources in any way, that's a win.

[Matt Valerio (Defender General)]: Why don't we give the clinical care coordinator to the Department of Mental Health back?

[Unidentified Committee Member]: Because they don't have the ability to implement this. And that's very clear.

[Matt Valerio (Defender General)]: I'm not sure about that. What I

[Unidentified Committee Member]: I'm gonna diverge on that point. I mean, What I I'm squarely in the belief that this has to be DOC, and and I I know that you disagree with that. Mhmm.

[Matt Valerio (Defender General)]: Well, and you've got the vote. So And Exercise

[Kenneth Goslant (Clerk)]: it as a ballgame. Right? Yep.

[Matt Valerio (Defender General)]: Yeah. That's what I'm talking about. Page nine of 16 is one of and I wanted to point out, lines 15 to 18 kind of incorporates the oh, wait a second. I'm sorry. Page eight at the bottom. One of the things I was talking about in the senate, this is lines twenty twenty one, and goes over onto the next page. It's unclear to me here. Page eight, line twenty twenty one. The reviewing court finds by clear and convincing evidence that the person is no longer suffering from a qualifying condition. That's the well, it's a defect, whatever. Who has the burden of proof? There's nothing in the bill that I could see. This was an issue that I raised on the other side. And typically, the person who seeks to hold somebody has the burden of proving that that person is a danger to themselves or others. This doesn't really this is just silent about it. It should be clarified. As I was talking about before, page nine, I like the idea of affirmative monitoring and come of orders that where people are released. Again, apparently, there might be some disagreement over whether it should be the Department of Corrections that is doing the monitoring. We should in my view, that is something that is perfectly suited to somebody with a mental health background who's gonna look at it through those that lens as opposed to opposed to a compliance lens that is typical of probation and parole officer. And I have already talked about, on page 11, the commissioner being in charge and a and whether a clinic whether I believe a clinical director in DOC is the right way to go. Know what I feel about that. The page 12 on line sixteen seventeen says records shall be made available to the parties of the underlying criminal case upon request. These are records related to the person in the forensic facility. That's fine. However, when they're by the time they're in a facility, there may not be a criminal case. They're also I think what you need to do is really clarify that legal aid comes in after there's a finding of incompetence or a finding of insanity. And I just it should be both. You the the it's it's really counsel, but parties I I just I didn't want it to we we run into this thing right now that is a conundrum for the defenders in that a case ends up going the mental health route, order of hospitalization or non hospitalization or the like. Yet. And we're supposed to be off the case at that point, yet we keep getting dragged into cases for sometimes years when there is no case. And it's fine to kind of send us records. But, you know, my lawyers get a hold of me and say, Why am I getting summoned into court on this case that I've had nothing to do with for two years? Legal aid is And handling the they're they have it in a mental health arena, dealing with it post finding of incompetence, vast, vast, vast majority of the time. And it should be that I think that should be clarified. Bottom line is, you wanna send records to the to defense counsel if the case remains, you know, kind of stayed or pending. You know, usually, it's the bigger cases, murder cases, or something serious. That's fine. Make sure that the make sure that the sure that legal aid gets a copy. I wish there were clarification, and I think I had suggested this on both sides. I may have even suggested it as, like, a separate bill that the public defendant should be allowed to withdraw if the case is no longer pending in criminal court. Kind of a separate issue and more of a convenience thing for for them. They have plenty of other things to do. But I would just wanna clarify that where is a record? Let's just put it that way. I don't really have any other comments on rulemaking and all the other stuff or when it takes effect and reports and all that stuff. I was more concerned about the concept that it remain that we do it if that, again, I support a forensics facility. I support that it be done constitutionally. I support that if people are in this position, they they be treated as they could be, which is as a person who is sick and need of treatment, and that we not blur the lines between incarcerating somebody and hospitalizing somebody.

[Martin LaLonde (Chair)]: Well, I really appreciate your testimony, Matt. Lots of things for us to continue to look at. So I understand that one of the bills that's on the floor this afternoon, not charged, is gonna be postponed. So it's not gonna be as long of a floor. So we'll be back here at 02:00 or immediately after the floor is labor. And we'll hear from Karen Barbara from DMH on 193. So we are doing 02:00 or immediately asking for what I

[Kenneth Goslant (Clerk)]: did.