Vermont Legislature SmartTranscripts:

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Okay,

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: great. So welcome back to Senate institutions. Today's Tuesday, March 31, and now we are switching to H559 which is an act related to the parole board and we have the director of the parole board here to discuss the board and we have a presentation. So if you'd like to introduce yourself for the record, thank you for being here again. Good afternoon.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Thank you for having me. I'm Mary Janie Zork. I'm the director of the cohort. I am give me one second while I close down. A couple of things, and I will share. Apologies. No worries. Right, and I apologize for getting the presentation a little bit to you a little bit later this morning, but I thought it might be helpful to go through a little bit. I don't know how many, how much familiar you are with the parole board and its structure, and I thought some of that might help around why we were seeking some of these amendments.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yes, thank you. Have various levels of knowledge. Some of us know.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: You. Yes. So, as to my quick general information, parole is established in Title 28, Chapter seven of Vermont statutes. The board is comprised of seven board members and three full time office staff. Of those seven board members, five card members per statute and two are alternates. However, our hearings are held with a quorum of three board members and we alternate all seven board members amongst those hearings. Right now, our alternates are treated the same way as we would treat a board member. That's the reason why we are looking at making the change in statute around the alternates. And I apologize, I'm gonna be going from all the computers. I forgot my prints out of bill.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, do you want one?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Oh, do you have an extra?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: I do.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Oh, thank you so much.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: It's 449 or no. 459. 540 No. You too. Thank you. Thanks.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Thank you, Kathleen. You're welcome. So just a little bit of background, and I'm not sure how you want me to proceed. If you want questions as I go, it doesn't matter.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: That's what we end up doing. Perfect. We don't plan it that way. Perfect. I think it's really helpful when you're giving us general information to refer to the bill that we're considering.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. So if so looking at the bill that you're considering on page one, lines 17 through 19 is where, the language is being changed from seven members from five members to seven members and then striking five regular members and two alternates. As it's been current practice for many years, the board treats all seven members the same way. And I know a question came up about quorum, and I can speak a little bit about that, but right now we do our hearings with a board of three, not a board of five. So every hearing has three members. The only time the full board meets is once a month at a monthly staff meeting, and that's when we have the quorum comes into play, but we always treat it as making sure we have a majority of the members that

[Sen. John Benson (Member)]: are in.

[Sen. Russ Ingalls (Member)]: Okay. Yes. Think this may have been gone over in previous meeting, and I apologize if you. When you had the two alternates, were the did the two alternates always come to the meetings, or did they come to the meetings as as much as the five regular members?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yes. They came to the staff meetings just the same as the other five members.

[Sen. Russ Ingalls (Member)]: Okay. So that that it made sense just to

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yeah.

[Sen. Russ Ingalls (Member)]: Get all set. Okay.

[Sen. John Benson (Member)]: So when you call when you

[Sen. Joseph "Joe" Major (Member)]: say staff meetings, you're talking about the parole board meetings as far as when they were talking about whether people were if you're talking about parole discussions, that's the

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: staff meeting.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So the staff meetings or the entire board meetings are when we're talking about policies, procedures, matters that arise to the whole board, not individual hearings. An incarcerated individual or someone on community supervision would not be attending. These are more our trainings, policies and procedure meetings.

[Sen. Joseph "Joe" Major (Member)]: So as far as if you were having a parole war meeting with incarcerated individuals, would those alternates be involved then at that time?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yes, those are our of three, our parents of three, and we integrate those alternates into the rotation just like a regular board member. And I think the next slide might help a little bit just so you can get it, Not the next slide.

[Charter Ames (Office of Legislative Counsel)]: Yeah, let

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: me just ask, let me add to that. So I'm just, it's hard to get my head around a quorum of three when you have seven. Because I'm used to a quorum being one plus the majority or the majority. But it doesn't have to be that way. And so this statute already says that three members aren't poor.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Right. And I think that's why we do our hearings at three. And then the vote is the majority of those three members. And so, just skipped ahead to page four, just so you have an idea of how many hearings we do and what types of hearings we do. So, each month, we visit virtually about 19 Department of Corrections sites. We used to go in person. Since the pandemic, we have been doing it virtually for many reasons. And we have currently nine hearing days and one overflow day. So potentially, we have 10 hearing days a month in addition to a staff meeting day where all members participate. So, we take those ten hearing days, the chair will assign three board members to each hearing day, and keep it about equal for each board member.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay, so that's the reason.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yep.

[Sen. Russ Ingalls (Member)]: So, you don't

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: have to have

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: more people. Right. Great, thank you.

[Sen. John Benson (Member)]: I'm just curious. So, to provide community sentence hearings, how many are on that level of supervision?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: The last I looked, was zero on the supervision level. But the board is responsible for their violation and so forth. However, they had that number has dwindled over the years.

[Sen. John Benson (Member)]: It's just been curiosity and I, John Of course. For eighteen years.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Of course. Wow. So are we gonna resolve that in this film? No. No. Okay.

[Sen. John Benson (Member)]: It's not an issue. Not a use. Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So I'm gonna jump back to slide three just to show you a little bit of how, because later in H559, it talked about the budget and consulting and so forth. The board is an independent quasi judicial entity according to statute. The board falls under the agency of human services organizational structure, so we are one of the affiliated boards with the agency of human services. However, it gets a little bit more complicated as our budget is a line item within the Department of Corrections budget. And that stems back to many years ago when the board was part of the Department of Corrections and the budget was never removed from DOC. So part of the last section of the bill around the budget submission in fiscal years 2028 and 2029 was really to memorial to have all the parties talk. Because over the last few years, the parole board has no has not been sought input in our budget. Our line item has been developed year by year by the Department of Corrections, basically staying static. Our needs have not been spoken about. And as we were talking about this in house corrections and institutions, there was some debate within that committee whether we should be our own budget or part of payment services or part of DOC. And that's, where they landed with a study to see how it would go.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. That chart is actually helpful for other things too.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. I took that off of, I think, human I think the human services submits that. That's part of the budget too.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Great, thank you.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. So as I talked about our hearings a little bit, I also wanted to touch on our current legal representation because that's a major part of age H559. Currently, the board is assigned an assistant attorney general who is assigned to the Department of Corrections Litigation Team and supervises the three additional assistant attorney generals for the DOC Litigation Team. With this, it develops an inherent conflict as whoops. Why did you go? Everybody. So with this, it's not working for a few reasons. The main reasons are we're an independent and partial body per statute. Also, there's a statute that says the board cannot be counseled in a pending parole revocation hearing by an assistant attorney general or an attorney employed by the Department of Corrections. So we are looking for legal advice a parole violation hearing when an eradication is looked at. We cannot ask our attorney that's assigned to us.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: That's can you explain that a little bit more? Like, what what exactly is it? I I mean, I'm assuming that parole revocation means taking parole away.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yes. So, basically, someone has allegedly violated petition of their parole agreement, whether it's they've committed a new crime and they've they're out past purview, they're not participating in programming, then they would come up before the board for a violation hearing. And at that time, that violation hearing, the board would determine, one, if they violated the condition, and then once they determined that, if they did violate, then they would decide if they were gonna continue the individual on parole supervision or revoke their parole, and then the individual would go back into incarceration.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: And what would be the reason for for saying that the parole board cannot be counseled by an assistant attorney general or an attorney employed by the DFC?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I am the only this was this actually was prior to my time as a director, so I don't have the full history. I think some of it may become because there could be an inherent conflict that the Department of Corrections is bringing a violation forward where the parole lead is then represented by an attorney from the prisoner's rights office. So is there a conflict? I think there could be a conflict whether it's about that legal advice that the attorney is giving the board, whether it presents a conflict and are they giving us information that would benefit the Department of Corrections? Is

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: is parole revocation the only thing that you're not allowed to hear from other attorneys?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I mean,

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: it it seems like there would be other items that would be on on that list. I think

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: the parole revocation is the the big one because it's it's a it's a larger liberty issue.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Being that you're taking someone's liberty away by reincarcerating them. But it it us, it's it's a conflict all the time. And our latest assistant attorney general represented us really rose that up and was able to walk the fine line, but it's hard to manage other attorneys who are defending the Department of Corrections, providing them with legal advice, and then also to come to and keep that wall up between them because the issues could be different.

[Sen. John Benson (Member)]: Okay. And the parole of the nation here,

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: and I should note this,

[Sen. John Benson (Member)]: it's the parole officer that's presenting the case. Do they have counsel with them?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So for a while, they did have counsel with them. That just recently stopped. For a while, they had the assistant attorney generals. The other two in that litigation unit were there representing them.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Great, Tanami. So why do they, I'm sorry, say again, what's happening now? Because you said they used to have them.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So now the Department of Corrections does not have the school council assisting them.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So that's a choice they made? That is

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: a choice they made.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: They are now just providing the information to the board. The board is reviewing the information.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Okay. So, we're on the topic that I think Todd is here for, but I don't wanna interrupt your

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: But we're going over the general house now.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: But I'm thinking we should do more of what, more of your presentation. Are are you okay for a little bit or what are schedule?

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: I'm supposed to be sorry. Todd Day Lewis, assistant attorney general. I'm supposed to be in house judiciary at 02:30, but I I really don't think I'll have a lot for you whenever you get to me.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Okay. Great. Thank

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: you. And I don't mind if we talk about that now either if he wanted me to hit on the bill as I'm going through.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Let's keep with your presentation and then the training, we haven't talked about that yet.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: You can't receive any training. Yeah, so currently, per statute, if an attorney employed by the Department of Corrections or an Assistant Attorney General, or the direct supervisor of an Assistant Attorney General, this is the statutory language in italics, who represents the Department of Corrections in parole revocation hearings, provides training to the board members on the subject of parole revocation hearings. The Defender General shall be notified prior to the training and given the opportunity to participate.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So, what kind of statute to me means something went wrong and they did something to correct it?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I think this goes along to that inherent conflict that I was speaking about a little while ago where you have a you have a department of corrections attorney that's involved in the department of corrections, also involved in the parole board. And the the defender general's office who the prisoners who who have the prisoners rights office within them represents the individuals at those hearings. We want to ensure that the information that the board has given is not tainted by the Department of Corrections, I believe.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Because they're one of the parties.

[Charter Ames (Office of Legislative Counsel)]: Yes. They want They're one

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: of the parties. They want it to be straight down the middle that the information the board is given and the training they are given is in their mind the correct information.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So the board has been through a training where we did have an assistant attorney general from, who was our current, our counsel at that time, who was also part of the DOC unit, try to give the board training regarding parole violation hearings. At that time, the attorney of the prisoner's rights office was also involved, and it became a training by the prisoner's rights office versus a training. So it was kind of it was no clear it was a very confusing time for the board to receive training because they didn't know who they were getting their legal advice from and which party. So where if we were to receive legal representation by an attorney that's not involved with either party, the board could then receive adequate representation, information, and training, and be able to also feel like they could ask those questions openly without either party in the room. That's also been hard to get legal advice because the board doesn't know where the It's hard to tell that line of when do we have the defender general in the room or

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: not. Right.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Right. So that's why they are seeking contracted We are calling conflict counsel.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yeah, this makes a lot of sense to me. So, do we have questions? Did you? Sorry, did you

[Sen. Russ Ingalls (Member)]: have No, a no. Were talking, so I was just looking at you.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: No, no, no. Well, I thought you'd touched me, but it's okay.

[Sen. Russ Ingalls (Member)]: I just took my hand off my chin.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Alright. Well, this is really, really helpful, so let's keep going.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So, for budget allocation, for in FY24, the parole board was, we are this is a poorly written sentence, I apologize. The parole board was to solicit for conflict counsel. At that time, we issued a RFP because we are allocated $25,000 for this counsel. At that time, no one responded to the RFP. We have continued to seek the council using this 25,000, and it was removed from the FY twenty seven budget due to the contract not being fulfilled. This was something that I found out during testimony in the House Corrections and Institutions. While this was going on, we had since been informed that the attorney general's office has attorneys that they contract with for other quasi judicial boards, and they believe they may be able to help retain one of those attorneys if the funding is extended. The exact hours and time spent providing counsel is unknown, therefore estimating the cost of services was difficult to derive, which leads to the pilot study that is in the H559 bill. Okay. And this is where moving that $25,000 forward to FY27 came into play and then the committee added in the 50,000. That was their choice.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: The house

[Sen. John Benson (Member)]: of me.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. The house of Okay.

[Sen. Russ Ingalls (Member)]: Now I do

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: have it. Okay.

[Sen. Russ Ingalls (Member)]: So so but the attorney general's office hasn't definitely said that they they can do this. That's is it possible? Is that correct? Because

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: It is possible. They when we were Attorney general. This guess

[Sen. Joseph "Joe" Major (Member)]: answer that.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Right? If if it's a really quick answer, yes. But what what I'm thinking what I'd like to do is go till twenty past and then get Head on.

[Sen. John Benson (Member)]: And I'll answer your question.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Is that okay? Can you wait that long? Okay. Great.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So now going into a little bit of our data, and I can go through this as fast or as slow as you all want. This graph is showing the data from 2020 to 2025 and the total individuals seen. This is how many individuals have come before the board for a hearing. This is not unique individuals, this is just how many individuals have actually appeared before the board. Over the last few years, the number has decreased some, but we've also seen the sentence population decrease as well. That correlates to that as well because the only time the board is only gonna see sentenced individuals.

[Charter Ames (Office of Legislative Counsel)]: Right.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: And of this also, in addition to the six sixty six, 172 individuals waived their hearing. 129 of those were for initial eligibility parole hearings, two were for parole rescission hearings, and 41 were for parole violation hearings. So, you waive your hearing, you're saying you don't wanna see the board. Even though you were, statutorily were supposed to.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Are those the only three types of hearings?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: No, those are not. Those are the three where waivers come into play.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. I'll wait to learn about the others.

[Charter Ames (Office of Legislative Counsel)]: Okay. Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So, the GERALL process Oops. My hand this touchy. There are three main mechanisms and four main processes for one to get on and to be placed on parole. One is through presumptive parole. This is that an individual must meet a certain criteria outlined in statute. If they do, the board can administratively place them on parole without a hearing. This criteria is very stringent and very few individuals meet this standard anymore due to the nature of the population has changed. The population is a much more higher level crime. A lot of the lower level offenders, first time offenders are being diverted through other mechanisms and not being sentenced to incarceration. The second method is the initial parole interview. All inmates are eligible for an initial parole interview at their minimum sentence. That's generally the most common way. And then they may waive their interview at that time. And so for the initial parole interview, the person would appear before the board. The board would receive information from the Department of Corrections on what is going on with their case. Are they in programming? Have they completed programming? Has there been release planning? And so forth. And the board would look to determine if they were gonna deny or grant parole at that time. If they are denied, they can come back before the board in a couple of different manners. One would be if the Department of Corrections asks for them to be seen generally with a positive recommendation, or annually an offender can request to see the board at the anniversary of their initial eligibility date. And also, if the individual doesn't request a interview at that time, the board may review the information given by the Department of Corrections and decide if they want to interview them, that they may see on paper that they could potentially be a good candidate for parole. And then there's medical parole, can occur, somebody can be placed on medical parole prior to the expiration of their minimum sentence line. The offender must have a serious medical condition that would render the offender unlikely to be physically capable of presenting a danger to the community. There are very few cases that we have seen for medical parole.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: That's very interesting.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Okay. Since 2025, we hold three thirty four parole hearings. The number, as you can see, has gone down since 2020. Again, like I said before, the number of people seen, this goes into really looking at population. We all hear about court backlogs. We all hear and also, I think sentence structures may have changed a little bit too. People I I don't know, but people could be getting longer minimums. I'm not sure, but definitely the sentence population is down. So that brings our frail hearing numbers down.

[Sen. Russ Ingalls (Member)]: Was 2020 the amount because of COVID, I would suspect?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: And also in 2020 Justice Reinvestment two was passed during the 2020 legislative session, and that also had a lot of initiatives in it to divert individuals different down different roads depending on their prime type and so forth.

[Sen. Russ Ingalls (Member)]: And it also seems that the denials are consistent as far as the numbers as well. I'm not saying that there's a quota or anything. But is there a quota?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: No. There's not a quota. There is definitely not a quota, but I will say our grant rate was down. Our grant rate was down this year. And I think that's just the nature of the population and the nature of the individuals. We're seeing a lot of individuals who have committed multiple crimes. They're repeat offenders. Have A lot of the people coming before have been on hold before and not been successful, or they have picked up a new crime while they are out in the community. We're definitely seeing a much more challenging population coming before the board.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So how does the board, or does the board

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: measure its own process? So, currently have a specific measurement right now. We do have a structured decision making tool that the board uses, And I'd be more than happy to share some information on that. I don't have that with me at the moment. So in 2020, as part of the Justice Reinvestment two initiative, the board was encouraged to look at a decision making framework or tool. And so we partnered with the National Institute of Corrections to use a tool that has been validated and 11, I think 12 other states are using it to really base the decisions on criminogenic need areas, both historical and looking forward areas. So the board is now really looking more dynamically at the cases and at specific factors where before we had our own risk assessment, but it was not validated. It was way out of date. And there was really no tool or framework for the board to use in their decision making. So it sounds like that has been helpful. Yes, it has been very helpful. And at every, so the once a month meeting, when all board members stay together, that's static topic on our board meeting agenda, and we look at the data from those hearings. We also because you can code the each area with a mitigating, aggravating, and neutral. So if we have a board member that codes one area as aggravating and one as mitigating, we will look at that case because we you should never be further off than neutral. So we do do case reviews during our meetings as well and have substantive discussions about these modules and just keep our training That's great. Yeah,

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: I mean, to me that sounds really good. Yep. Reflective and you're measuring yourself. Yep. Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Then as I said, presumptive parole, I'm not going go into a lot of detail. This came out of Justice Reinvestment II. There are six criteria. They are very stringent. Basically, you cannot be serving a sentence and pick up another sentence while under supervision. You can't have a detainer placed on you from the state of Vermont or another jurisdiction. You have to be case plan compliant. So, if you're not completed programming, you're not finished your programming yet, you have to be free of major disciplinary reports for twelve months. You can't have had your parole revoked before. Those are the major those are the main outlines. And there are very few. I think we've had one this year so far meet that criteria, but there are very few that meet this criteria now. And as you can see, we had three last year. Oh, and there's the eligibility is detailed out more. I just gave the quick rundown. And I gave a little bit of a rundown earlier about the review process. I'm not gonna go into detail, but feel free to look at it if you're interested. And then as I mentioned, with the annual reviews, these are the statutory reviews that if you're denied parole, every year the parole board is gonna review your file. The Department of Corrections will submit an updated parole summary to us to review. And at that time, the individual can request in writing to have this review be done as an interview versus a paper review. So, in 2025, we did 175 administrative annual reviews, 48 offenders requested in person reviews, and the board requested five in person reviews as well.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So, reviews are done without an interview of the offender, but then the offender does get the review? So,

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: the review is done without the offender. However, the offender has the ability through statute to request that review to be in person.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, so. So, the result of the review is something that the offender could get.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yep.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. So, whatever is a good, pausing list, but you're, you're able to stay, right?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. Okay. Can stay as long as you need me to.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Good. Thank you. And then we could get Yep. Attorney Lewis.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Perfect.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Thank you for being here. So we had various levels of knowledge in this committee. So I have questions. But you know where this bill is going and you were involved in the house conversation. So if you could just let us know what you think we should know at this point.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Absolutely. So for the record, Todd Davis, assistant attorney general, senator Benson, across the table here. It's simply that in the committee on something slightly different than data privacy. Yeah. I agree. Yeah.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Although we still care about data privacy.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Absolutely. More than happy to talk about that, there are questions. But let me just take a couple steps back. So this bill grew out of some work that a former a and g who now works at DOC sort of raised these concerns. I think Mary Jane just spoke about them in terms of the conflict or potential conflict with the AAGs or the AGO providing, to to shift the context a little bit, basically, legal advice to the judge and legal advice to the prosecutors. And and the AGO had a system for keeping those sets of attorneys separate, but understandably they all operated under the same DOC attorney general structure, and so there were concerns about that perception of a conflict.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay, is me not knowing that, AAG versus AGO.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Great, sorry to have used too many TLAs

[Sen. Russ Ingalls (Member)]: or three letter acronyms.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: AAG is an Assistant Attorney General, so that's basically everybody except the attorney general or deputy attorney general, then there's one other position

[Sen. John Benson (Member)]: called the chief assistant attorney general.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: The rest of us are AAGs. The AGO is the attorney general's office. That's

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, sorry. Okay. Got it. Thank you.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Please, I have lived and breathed too many acronyms, and it's good to get called out on that. So essentially, there was a concern on the conflict of interest piece, and then there was a concern that arose out of kind of a desire to modernize the parole board, both from the parole board itself and also from folks appearing in front of the parole board and some tangential stories about, you know, we're looking at a very different criminal or criminogenic presentation of individuals than we did forty years ago, twenty years ago. We're seeing a lot more substance use disorder. We're seeing a lot more mental health concerns. We're seeing a lot more unhoused populations. And all of those things play into the review of parole, the grant of parole. And those are all things that when the Department of Corrections undertakes a furlough determination, I won't wade too far into those waters, but that's separate from parole, they are undertaking a degree of assessing individuals with those understandings of the different challenges folks are facing outside of an incarcerated setting in mind. And so born out of that desire to help the parole board, to sort of respond to the needs of the parole board, we put forward this Bill five fifty nine that in its original form was really just, let's shift what we think the criteria for parole board members should be from one that was really focused on understanding the carceral system, understanding corrections as an institution, and one that was looking at how do we talk about what the court should be focused on, which is the appropriateness of somebody to get out into society, their ability to succeed when they are no longer incarcerated. What does it look like for rehabilitation and the like? And so those were elements working with the parole board we recommended in this bill, and then also some structural changes to the parole board itself, And again, looking at increasing the number of trainings that the board had, ensuring that the director of the parole board had a say in what those trainings were in concert with the chair of

[Sen. Joseph "Joe" Major (Member)]: the parole board.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: So that's kind of the genesis of the bill. Then upstairs, there was a lot of conversation around this potential conflict of interest and legal representation. And so where things stand now, and this may answer your question, senator, Basically, the Department of Corrections stopped requesting that the AGO represent parole officers in parole hearings. So, to shift context again, sort of helping the prosecutor prosecute the case. Now that seemed like a pretty big move to take legal counsel away from that, but in fact, for a long period of time, probation and parole didn't have legal counsel in that setting, according to the deputy field director from DOC upstairs in the house institutions, not a big concern for them at this point in time. So the AGO for a long time continued providing the counsel to the board, and we just essentially had another attorney out there who was answering questions, was available on call, and the desire from the parole board had been and continues to be to sort of have even further independence from that. And and I think Mary Jane did and I started laying out sort of the statutory challenges there, right, where, well, if the AG's office provides the training, then the defender general's office needs to be there so that there's some kind of balance, and actually it turns out that team teaching was not particularly effective for the parole board. Whereas if you have a third party who doesn't have any potential conflict come in and provide the training, hopefully that gives the board what they're looking for, helps strengthen the process, and and also enables us to have a stronger pro board throughout. So in answer to your question, will the AGO still do it? We we provide all the legal services that the Department of Corrections generally speaking needs, especially those that involve litigation and and appearing in court, and we're gonna respond to what the client wants. And in this instance, this is what the client says they want, and that's what we're gonna respond to. You know, there's a question a little bit around costs, and I leave that up. I think there was a lot of discussion upstairs. I'm happy to answer questions on that too. I think as far as the bill goes, we don't have any concerns of of of where the bill sits. There's one little tweak that I requested from house institutions that they said no to. So I wanna be clear. They heard it and they said no, but I will just reiterate it here, which is in that study section, which I think is hard. Section Section four on page four, it looks like it's sub part subsection b, just sort of directing us to coordinate with the board and AHS. We do that anyway. It's sort of like telling us to represent the state in court. I mean, that is one of our roles is helping out. So we don't think it's necessary. It's not damaging, but I thought I would at least reiterate that that understandably what the house corrections wanted was to know what process they laid out to make sure they could follow-up to see that it was followed. I would just say we're happy to do that at any point in time and it feels a little redundant today.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay, and I do have that as a, I took a note of that. So just a question about the process. So, on the pilot project, so provide an external legal support. So whoever is providing that external legal support, what did they need to be

[Sen. Russ Ingalls (Member)]: contracted?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So the way I'm just thinking back to I was on a T board and so we wanted to have a separate council and it took, I want to say almost a year to get. Can you share?

[Sen. Russ Ingalls (Member)]: You were on what form?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, I'm sorry. The transportation board, which is a it's it's a board that was created to Okay. For one

[Sen. Russ Ingalls (Member)]: He was using acronyms and you didn't

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: say Yeah.

[Sen. Russ Ingalls (Member)]: Sorry. Sorry.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: That's just one letter, though. I know. That is that's that's true. That's true. Yeah, no, it's relatively obscure, it deals with situations, not only this, but where VTrans could be sued essentially, like contractors who don't like the way VTrans handled their contract, like by not paying them, for example. So we wanted to have a separate council and it took, there's a lot of limitations on that. You can't have somebody more than a certain amount of period of years and the process just to get somebody is, it took months. So is that still the situation?

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: So I think that Mary Jane had a slide on this that suggested, right, they there was $25,000 identified in the FY '24 budget. There was an RF they issued an RFP and there was no response.

[Sen. John Benson (Member)]: Yeah.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Essentially, once it got to the AGO quite a bit later, it's kind of around the time that this bill came into the and the possible legislative solution became got on my radar. The we have multiple contracts like this with multiple smaller quasi judicial boards. Right? The liquor and lottery board was one of the flag. I'm trying to remember, sent an email to house corrections that I'm happy to provide you with as well. It sort of lays out the basics of the contract, the duration of the contract, the cost of the contract of what we would perceive as similarly sized boards and boards with similar needs. Those are not full RFPs because the total value of these contracts doesn't reach that level, and essentially we kind of know the firms that do it so well. It's an open and public simplified bid process. We're going to reach out to the couple of folks who hold some of these, So they already understand administrative law, they've got a sense of what the due process general requirements are, and they're able to pick this kind of practice up. So we have fewer concerns about the ability, that's why it's a pilot project to see how it will work, and of course, it's gotta work for the board and for the executive director.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So will the board get to choose which one of those entities? Yeah.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: I mean, I'm not saying it'll be a, you know, huge menu of options. It's still the state of Vermont. It's still, you know, sort of firms that that kind of work in this area, but there I would guess there will be a a handful of options.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. And the Florida Blue Shields, the the pro board.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Yeah. Our job is to facilitate. We the attorney general's office by statute approves all legal services contracts, and so that has to come through us anyway. And in this instance, we have good experience sort of finding this kind of support work for boards out there.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. So I'll ask this question a different way. Will the floor board have a yes or no? Yes. Okay. It's their concept.

[Charter Ames (Office of Legislative Counsel)]: Okay. Absolutely.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Sorry. I wasn't clear

[Charter Ames (Office of Legislative Counsel)]: on that.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: They will get the bids such as they are. They'll be absolutely making the determination on

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: To the contract.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So they have they have confidence in the person and trust. I mean, it's all about trust.

[Sen. John Benson (Member)]: I I got a question on that. What you were just talking about, it'll it'll be the board's contract. The statute requires the AGO to enter into the contract. Is that how it works? We have

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: to sign off on the contract. So in the same way that a lawyer might sign off as a form, but not to the substance of the agreement. Okay, so

[Sen. John Benson (Member)]: the statute or the bill says, AGO shall coordinate with the board blah blah blah and contract with external legal support. Yeah. That reads to me, like That

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: we do. Yeah. We we would not wanna be

[Sen. Joseph "Joe" Major (Member)]: the party to that contract.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: I mean, I can double check, but I don't think we we facilitate those contracts for the other boards, but in this instance, I think it would still be the agency or the department. I will I will double check and make sure I'm not speaking out of her, but I think that's the case with most speakers.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yeah. And there was tension with the T4. Yeah.

[Sen. Russ Ingalls (Member)]: So For Anna.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yeah. Several times. Oh, okay.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: We don't have a dog, then that's fine.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Excellent. Okay. Well, this is very helpful. And you are beyond your time. But Thank you. Thank you. Any

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: any other questions?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, no. I'm not picking you up, but I thought you had to

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: I do, but I just think you got more questions. We call them each

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: other, but we can do that another day.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: Happy to come back.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Thank you. Thank you. You. Questions. Okay. So, Mary Jane, you would like to come back? Sure. Thank you. Of course.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I'll share my screen, I guess. I didn't take it off well.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: I believe we're on fifteen, page 15. Yes.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Responding to violating behavior. So this talks about this is when an individual who is on parole supervision allegedly violates a term and condition of their parole agreement. So if somebody got on parole, the probation, the officer, or to the board that someone has committed a new crime, violated a condition of their, which could be programming, could be curfew, it could be housing, so forth. There are two procedures, the two proceedings that could be held if someone violates a condition. First one is a reprimand proceeding. So, in lieu of a formal violation proceeding, a supervising parole officer may request the board to deliver a verbal reprimand to the parolee who has exhibited conduct in violation of his or her parole conditions. In these types of hearings, the parolee is not allowed to speak at first. The parole officer will present the case to the board, and they will then make a determination if they are going to accept, if they are going to deliver a formal reprimand, or if they want to move this to a violation hearing. The reason they don't speak to the parolee at that time is because they don't want to violate the due process rights, because if at a formal violation hearing, the individual has due process rights and the right to an attorney. There's no attorney at a reprimand proceeding, so they don't want the individual to speak until they know if they're gonna treat it as a reprimand or not. So if they treat it as a reprimand, then they speak to the individual, talk about their plan going forward, and then talk about is there additional conditions that could be held could be added to help mitigate the risks in their needs and so

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: forth. But

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: if they do move into a formal violation hearing, they will then not fix the individual at that time.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: I'm just asking if we can have a little less noise. Sorry. It's distracting to me. I don't know if it's distracting you or not. Okay. So keep going with

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: this And then a formal parole violation proceeding is where the individual has the right to be represented by counsel. Generally, counsel from the prisoner's rights office represents the individual. If there's a conflict between a prisoner's rights office and the individual, The prisoner's rights office will usually assist with getting conflict counsel, another counsel to come in to assist with a case. The proceedings are held in two parts. The first one is evidentiary. This is where all evidence is presented around if a condition was violated or not. The individual may admit to the violation. They may also deny the violation. So this is where, yeah, interesting because each side can call witnesses to testify. I think at a time, look like a mini court hearing or a court trial at times. At the end of this section, the board will then determine if the parolee violated one or more of the conditions. If the board determines that no conditions are violated, the hearing ends and the person remains on parole. If the board does determine that the parolee violated one or more of the conditions, then they move into the disposition phase. And this is where the board determines if the parolee will stay out in the community on parole or if they will revoke the parole and the individual will be reincarcerated. The carrying outcomes generally are that they will, if they continue them on parole, they have other options that they can add to it. One is an incarceration sanction of no more than thirty days. Another one is that they may modify their parole conditions as well. And then if they were among parole, the individual is re incarcerated. They are reincarcerated and then the Department of Corrections starts case planning again.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Thank you.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. So just looking at our reprimand hearings, last year, we had a total of 21 reprimand hearings. Looking at these charts, we really look at two types of so when somebody violates, we look at whether it was a new offense, if it was, any other violation, so any other condition, we call technical, or if it was both a new offense and a technical violation. So this a reprimands generally are tech for technical are generally for technical violations. If it's a new offense, it's more likely a low level offense, like a driving with license suspended or something much lower on the spectrum of crimes.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So is technical related to the offense that they're serving time for?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: No, it's really around the condition, and I didn't bring all the conditions with me today, but it's around if they brought, if they, well, the way we assign conditions is really around their risk and needs. It could be around what their offense was that they committed. It could also be around, do they need more support in programming? Do they have substance use issues? Do they need housing, specific housing, so forth. So we really look at the needs of the individual and drafting their conditions.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay, so technical is relating to the conditions.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yes. Thank you. Of course. And then this is our formal violation hearings. So as you can see, even though our parole hearings have gone down since 2020, with justice reinvestment, more individuals are being placed on parole than on community supervision furlough. Previously, those numbers were switched and more individuals were on furlough than on parole. So with this, it's creating a challenge of we are seeing more parole violations, which is then presenting which then goes into the training and the training needs of the board because these cases are getting more and more complex. They're being more and more more and more chat the hearings are being more challenging. We're having a lot more witnesses come in, etcetera. And as you can see, we're still seeing more technical violations than nontechnical than a new offense or both. But you can also see that we've continued more people on parole in 2025 than we revoked their parole. So we're trying to work with the individuals and their needs to see what can we do to keep them out in the community if it's possible. And so, and then the next screen just shows a little bit of the outcomes by type. So you can see for technical, 71 individuals were continued on role 21 were revoked. As you can see, the more comp when you when there's more revoked is when you have both when you have a combination of both a new offense and technical violations. Those are are more of your complex cases. And then with the folks that have waived so if you waive your parole violation hearing, the outcome is automatically revocation. And as you can see, they the individual has to, I want to preface that. The individual has to consult with their attorney. We will not accept a waiver without the individual consulting with their attorney first to make sure that they have talked this through and they are aware of what the consequence will be. But the majority of those are also that full field of new events with additional technical violations. And then for house corrections and institutions, they wanted to dig a little bit deeper into our violations. We don't have a database that keeps data. We do a lot of it by Excel spreadsheets and by hand, I was able to dig into our parole violations last year just to show a little bit more of what were the conditions that were violated. So this is basically a list of our conditions, within violations. This is not a unique number, so individuals could have multiple, I didn't want to rank our conditions by which one trumps which one and what's the hierarchy, so I just included it if it included that condition as a violation. So somebody could have had a new crime, a leaving Vermont without permission and or permit use of electronic monitoring violations.

[Sen. Joseph "Joe" Major (Member)]: Is this in 2025?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: This is in 2025. So I want to just preface that the numbers will not match our total number of hearings.

[Sen. Joseph "Joe" Major (Member)]: The new crime statistic is very scary.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah. You can also see residents and employment. Our third one down, reporting changes to residents or employment, generally that's residents, that's residents violations. A lot of times, if somebody absconds for supervision, that will be that addition violation.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Can you talk more about that?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So if somebody absconds somebody if somebody absconds for supervision, they stop reporting, the parole officer cannot find them, I have the ability to issue an arrest warrant for the individual, and we will issue that arrest warrant. And if they are arrested, generally if the condition, violation of petition three because they're not reporting their change of residence. And sometimes it could also be a leaving Vermont without permission because they

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: may be picked up out of state as well. I see, okay. Changes to residence or employment, so it's not that they have moved or they have lost a job or going to their job, it's that they haven't reported.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: It could be both.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: It could be either or. Okay. Yep.

[Sen. Joseph "Joe" Major (Member)]: So when you look at the, like, new crimes, what percentage of the population out on parole does that represent?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I don't know the percentage of my credit, I'm not going to do public math. Have approximately, I think we have approximately 700 individuals or 700 to 800 individuals on parole right now.

[Charter Ames (Office of Legislative Counsel)]: Does that answer your question? No.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: And then what is approved residence or employment?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So approved residents, so some individuals, especially if they're in a transitional housing program, it requires them to have their residents approved by the Department of Corrections. So some individuals, depending on their risk and needs, we may not state that they have to have their residents approved by the Department of Corrections before being released. Sometimes somebody can go out and just live wherever they choose and do okay. Others, we really want to make sure that they have that approved residence.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So, if they were in an approved residence and then they go to a not approved residence,

[Charter Ames (Office of Legislative Counsel)]: that would be a violation? Yes. And

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: then what if they were, so how does the employment

[Sen. John Benson (Member)]: part work?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: The employment, this is still on this condition. We haven't removed it. We have not, I have not seen anyone violated for employment issues, that I can think of. It's just part of the condition. We're really trying to focus the individuals more on steady housing, steady treatment, because as you can see, substance use is a major piece as well, really trying to And then those are the big, focusing on not committing a new crime, focusing on studying a place to live and really on their treatment.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So is the program participation, is that?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: That could be, sorry. Yeah, that's okay.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: I was just wondering if that's where, if they were supposed to do something relative to the illegal drugs.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yep, that could be around substance use, that could be around transitional housing is also program participation. It could also be potentially risk reduction programming of domestic violence programming or sex offender programming, mental health programming. It really encompasses all types.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. This is very helpful. Did knowing these types of violations, did the parole board have you talked about this and will the board talk about this?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So we did talk so after I did this, I did we did talk about it at one of our staff meetings. I think it was eye opening to the board. I think we all deep down knew which the big ones were, but it was eye opening just to see the numbers and to see what the real outliers were. Okay. And having the ability to do this definitely is helpful. And I think this will also be helpful going down the road to around training and what really what need areas should the board be focusing on in their trainings to be able to ask the questions to know what kind of plans individuals should have around, say, substance use or not committing a new crime, housing, etcetera. And that's where we modernize some of the in the bill, some of the criteria of the board members. And then the next slide just kind of goes over I also when I was looking through, I just jotted down some of the crimes that I was seeing as what were the new crimes that were allegedly committed. This doesn't mean they were adjudicated of these crimes. This was a crime that came before the board because the board may see the individual prior to the criminal court adjudicating the case. So I just said, it was interesting just to see the vast spectrum of crimes that were being allegedly committed by individuals on parole. And I think this was enlightening to us as well as the Board.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, I'm sorry, go ahead.

[Sen. Joseph "Joe" Major (Member)]: Question, so as you look at this, I assume, as you've said, the board was a little eye opening to them on seeing some of that data. Does the board then look at potential changes in their patrol, parole analysis? Because obviously what we don't want is people out on the street committing additional crimes. I'm just curious how the board then uses this information to tailor their methodology of determining who should and who shouldn't be released.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: So this is something brand new. It's the first time I've ever done this in my seven years as director, and I think it's something that will help go forward as if the bill goes forward, where we can get some additional resources from the Department of Corrections in some of the need areas to help train the board in this. Also, I agree it will help us look at our structured decision making tool. It will also be starting to work on our responses to violations tool as well to help the board really look at consistency and how to respond to violations as well, to make sure that we're treating all cases similarly, that are similar. I don't know if that exactly answered your question, but it's a work in progress, but it's definitely something that I wanna keep moving forward. Our current chair does too. However, his term is expired, and he is not seeking reappointment. So we are waiting for a new chair to be appointed.

[Sen. Russ Ingalls (Member)]: And

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: then the next slide is just around preliminary violation hearings. I just went into this a little bit. Two, this is prior to a final violation hearing that we wanna make sure that somebody is seen within twenty days if they are incarcerated. So somebody can be incarcerated either by the Department of Corrections or by arrested on one of our warrants, and we wanna ensure that they are seen within twenty days of their arrest to determine is there a probable cause to continue to hold them or and then also, most of the time, probable cause is uncontested by the individual, but they may be seeking release pending that final violation hearing.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Then the last slide is just a little bit of our, just a couple of our other hearings. One is around condition modifications. That could be from a parole officer asking for someone's condition to be modified. It could be from an individual who's on parole asking for their condition to be modified. Of the 20 condition modification hearings in 2025, the modification was granted 12 times and denied eight times. And also the parole rescission hearings, most of these were a result of someone being paroled to a detainer that they had in another jurisdiction, whether it be in another state or with the federal for the federal jurisdiction, we would parole them to go satisfy their detainer in that in that jurisdiction, and then they would come back and their parole would

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: be rescinded at that time. That's interesting. So there would be a detainee somewhere else waiting for trial. Correct. And then come back before the trial or after?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: No, they would come back after they were satisfied. So it could be before their trial or they could be serving a concurrent sentence in that other jurisdiction and then they would come back at the completion. So that could take years? It could take years, yes.

[Charter Ames (Office of Legislative Counsel)]: Interesting.

[Sen. John Benson (Member)]: Yeah.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So the condition modifications that can you just give an example?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Think a lot of them I can say a lot. I could almost guess that a lot of the eight times that they were denied, it was people who wanted condition 16 around approved housing to be removed. The board really felt that the individual should have an approved housing, steady housing, but the individual wanted to be released sooner because they couldn't find the housing, which could result in a not a resident that was not productive to their being a pro social. So people hard the shots are hardballs that juggled with our housing markets right now. It's hard to spend one of the topics that we talk about in many staff meetings. Okay.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Well, let's talk about that one. Mean, not necessarily now, but another time when you come here because what it's funny, I was just talking this weekend with someone about that because we have had there's there's places I know in my district that used to have rooms for people getting out of incarceration and now they don't. And some public or some are nonprofits, others are individuals. And I thought the best way to get the information on that would probably be DOC, think.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Yeah, believe DOC might be the best place to get the information as they manage the transitional housing contracts.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So when you deny, not you, but when the parole board denies it, are

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: they

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: saying no, there isn't a spot for you that we think is a safe spot, so you need to stay in the prison?

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: It's basically, they are saying that the the residents that you're pro DOC so DOC will also say why they don't recommend why they're denying this residence, and then the board will look at it all and decide if they agree or not. Okay. So that is It's a hard That's a It's a hard Really? That hard.

[Sen. Russ Ingalls (Member)]: If I happen to go to which is the Essex District. So I'm obviously familiar with the types of psychomobics. Pull in there and then gonna say that the criteria is sometimes incredibly stringent. Mhmm. And I understand to a certain extent that you wanna have the best working with person. But some I I don't know how to solve really with our housing issue plus some of the specifics of being in correct housing. It's difficult needle to thread.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: I would agree completely that it's very difficult and also very difficult to keep the integrity of some of these programs as well, because they're because you do get some of the individuals that go in and they do break the surgeon program rules and so forth and trying to keep the integrity. It was just very difficult at times. Right. I don't know the solution either. Wish.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Well, think, well, one thing that I've heard is, and obviously I need to verify this, is that in the past we had more, think it was parole officers who would help the folks manage their housing more directly. Exactly. Like, if if the landlord had an issue, the parole officer could could help

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: and talk to the individual and and and keep them in the house. Yeah. That's another that's another thing that I can't comment on since we don't do any of the supervision practices. That would be another department of corrections questions because they do all of the supervision.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Okay, so, yeah, that's not the goal of this bill, but it certainly is an issue. So, all right. Think we're, does anyone have questions? I've learned a lot. Appreciate it. And so, we'll have you back. Okay. And we'll talk about what other witnesses we need to have on this bill. But this is very helpful.

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: Thank you. Yes, absolutely. Thank you for having me.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Thanks for your work. Then just coincidentally, we're not going to take a break because we are on schedule at 03:00. It's supposed to be each 05:49 and it's essentially a conversation. Hillary is here and if don't mind. Sure. But what I wanted to do is just talk to the committee because this bill has very slight different language than the very similar language in the T bill. You all well remember the T Bill that was passed by the Senate included all these various driver identification cards, a non driver card for folks who are coming out of incarceration and we passed that and so we support it. This bill is very similar. So I do wanna take out this bill. I think it's important to have the language in multiple places so that we can make sure it happens because the, I'm sorry, I said T bill, it's not the T bill. It was the DMV And so the DMV bill doesn't always get passed and signed. It's one of the bills that isn't a necessary bill. T Bill gets signed. So there's a distinction there but I wanted to make sure the committee has an opportunity to suggest other witnesses if you had any concerns about that program. We'll definitely need to have Litch Counsel to explain the differences between the two bills. But other than that, I don't see a lot of controversy, but I wanted to give you a chance to chime in.

[Sen. Joseph "Joe" Major (Member)]: Yeah, would think understanding the differences between the two bills may then tell us if we need additional witnesses to explain why what piece was in here wasn't Good in the

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: point. Okay.

[Sen. Russ Ingalls (Member)]: If we had a side by side, that's probably Sure, I

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: think we can do that or I mean, we've had, there is a memo out about, actually Damien is working on it and he still needs to confer with a couple of folks. So, we'll definitely get you, if not a side by side, it will be A list.

[Sen. Russ Ingalls (Member)]: A compare. That's that's fine. Yeah.

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: I mean

[Charter Ames (Office of Legislative Counsel)]: I will say the intent for Damian and I coordinating these two bills was that they were the same, at least with respect to the substantive language. I think we realized there is one word that is different where it says non real ID or real ID, non driver identification card. This bill adds non driver identification card and in the same language. In the miscellaneous motor vehicles bill, that language was not added. So Jamie and I did not do our coordination perfectly.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: It's good to on that one. It's good to know you're human.

[Charter Ames (Office of Legislative Counsel)]: Hopefully, I'll be in small ways when it comes to legislation. But apart from that one thing, I there should not be.

[Sen. Joseph "Joe" Major (Member)]: Actually, there's a comparison. Just just that. Words. Yeah.

[Charter Ames (Office of Legislative Counsel)]: So if we can do a double check and do a kind of red line red line comparison if that's useful. So I think that's a that's a nice step we're happy to do if that's useful for the committee.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Great. And I think that's already in process. And if there is any other issues that have risen in other committees discussing this, that would be helpful too. Excellent. All right, so are we good? Or are you thinking? Well,

[Sen. John Benson (Member)]: we should have spoken the other bill.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, the bill before us?

[Sen. John Benson (Member)]: Yeah, but are we gonna talk about that another time?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: We're definitely gonna talk about it another time, but if you have something, why don't you mention it now

[Charter Ames (Office of Legislative Counsel)]: if that's okay with you? Happy to finish the walk through if that's a useful stopping point for the committee. Yeah. That's fine. Absolutely. Up to you how you'd like to use it.

[Sen. John Benson (Member)]: If we have time, it makes sense to finish the law figure, then you had mentioned that there was some other change in law that impacts it. That's what I gonna ask about. Yes.

[Charter Ames (Office of Legislative Counsel)]: Okay. At 05:49.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: And once again, I thought we hit that. Oh,

[Sen. Russ Ingalls (Member)]: no, 05:50.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Sorry, Oh yeah, no, we're not there. Yes, yes, we're about that. So that walkthrough, yes, let's do that. Correct.

[Sen. John Benson (Member)]: Good catch.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay, so now for the public, we are back on H550, which is an act relating to gender equity within Vermont's correctional facilities. And we'll put it on our agenda that we're going back to that bill. Thank you. Perfect. Do I

[Charter Ames (Office of Legislative Counsel)]: have permission to share this? Yes, please. Alright. Again, for the record, we've learned Charter Ames, Office of Legislative Council. We paused our walkthrough earlier at the end of section five. So I'll start on page nine, line eight with section six. Section six adds an authorization in state law for the Department of Corrections to comply with the national standards promulgated under the under the Prison Rape Elimination Act. So those standards concern the prevention, detection, and monitoring of, as well as the response to sexual abuse and correction facilities. That was a federal law passed in 2003. As representative mentioned, a lot of stakeholders worked for a number of years on the standards, which came out, I think, in 2012. So subdivisions one through I believe it's 44. Yes. Subdivisions one through 44 of subsection a essentially identify the topic of each of those standards. And this is a way to capture in Vermont law the direction of DOC if continuing to comply with these even if there are changes at the federal level. The testimony provided in house corrections was that as of December, there's been a direction from DOJ not to enforce certain PREA standards related to transgender and gender diverse individuals. And it sounds like there was testimony as well that further changes were expected. There was an executive order signed by the president in January that had to do with gender identity and how federal law was enforced related to gender identity. And as I'll mention shortly, there are changes expected to PREA enforcement and potentially PREA standards on that topic. And it also sounds like there is some Department of Justice enforcement activity related to that topic. That's a

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: oh, go ahead.

[Sen. Joseph "Joe" Major (Member)]: Basically answers the question I had before, which was if this is what they are already doing, if Corrections is doing all this, why do we actually need the law? But the reason is because federal law is changing and it's sad basically.

[Charter Ames (Office of Legislative Counsel)]: Yes. My my summary of house corrections describing the intent of doing this was that they felt it was important that DOC continue to provide these kinds of protections, and they wanted to make sure there was an authorization in state law even if that protection was going to be withdrawn as a federal requirement. PREA consists of two parts. There are both the standards, and then there are audit and compliance mechanisms, which are funded federally and managed federally. This came out the week before town meeting break. And at that point Yeah. Taking on building out some kind of state level audit and compliance function was not feasible. So this bill for now authorizes complying with the standards as a matter of state law. And I think past corrections indicated that in future, if the legislature wants to return to adding a state level compliance or audit function, that it could do that. And I'll flag the NHIP one of the sections toward the end. There is a kind of review and report back related to the PREA standards and revisions so that there's kind of a prompt for revisiting them, ensuring that whatever changes have happened at the federal level and otherwise is still kind of cognizant of those or makes any necessary changes. Okay. Okay. Still want to. It's just maybe you all aren't distracted.

[Sen. John Benson (Member)]: You're well. Yeah. I'm just looking well.

[Sen. Russ Ingalls (Member)]: They don't they don't really suck. Right.

[Sen. John Benson (Member)]: So I'd I'd like to tune it out somehow. Yeah. Good for you. I had a couple of questions. So the 44 standards that are listed, are those all of the standards?

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Correct.

[Sen. John Benson (Member)]: So the least my follow-up question is on what you just said. Standard 44 is audits of standards. So how does that work with what we just heard that we're not gonna be able to do the audits of the standards?

[Charter Ames (Office of Legislative Counsel)]: I can take a closer look at that specific regulation and flag a more precise answer. Okay. Part of the auditing is data collection and reporting, which is a function that has that you'll see flagged in a in a moment. Prospections didn't want to capture specifically. So there there might be a portion Okay. Of a regulation that eventually doesn't make sense exactly as written. So if it refers to a specific auditor Yep. Right, then that goes away. But I think that's the idea behind structuring this authorization this way, is that it's pointing the right to the standards, and it's flagging, please do all of them by topic. Right. But it should give the Department of Corrections enough flexibility to adopt and comply as as feasible. But I can also think more about whether there's language that's appropriate in subsection a to to kind of account for that. Is

[Sen. Joseph "Joe" Major (Member)]: this all what the house of corrections is trying to do, put us in conflict with federal

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: law? So

[Charter Ames (Office of Legislative Counsel)]: a DOJ, as of now, the federal standards still exist under the federal regulations. There have been no changes to the federal pre law. DOJ enforcement priorities don't create a conflict if the state department of corrections wants to still comply with the regulations. So there is not currently a conflict. I can't predict where things might go. I think that's all flagged shortly in talking about some of the legal developments. This is a very quickly changing and developing area of law, and there there could at some point arise in conflict. But just based on DOJ changing its enforcement priorities for PREA as of December, this

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: bill does not conflict with that. Can I follow-up on that? And then Yeah. So is it that DOJ isn't saying that states cannot do that? They're just doing something different. DOJ is just doing something differently.

[Charter Ames (Office of Legislative Counsel)]: Yeah. So DOJ is changing its enforcement priorities just means that when it looks at audits, it's not going to pay attention to any reporting data related to the regulations that cover protection of transgender and gender diverse individuals. So it's more of a we're not enforcing this. It's not, as you said, a states can't enforce this or follow this.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So if they did say that states can't, then that's when we would we could have a problem.

[Charter Ames (Office of Legislative Counsel)]: That would need to be either a change in federal law by congress to the prisoner of elimination act or an administrative change to the code of federal regulations standards. And whether there's a conflict would really depend on what that change looks like. So I think that is a tension in asking DOC to comply with current law. I think house corrections proposal for resolving that tension was to include this review and report back Okay. To revisit possible issues. I think there are two ways policy decision, how to handle it. There are two ways to do it. One is what h five fifty does, which is to say, essentially, prioritize protection now and revisit potential conflict later if it arises. The other way to handle it would be to say, we're saying nothing for now. We'll see what changes happen, and then we could come back and make a change in response to those changes. Both carry different kinds of risks, but those are, you know, two different ways of approaching

[Sen. Russ Ingalls (Member)]: approaching the situation. Okay. Yes, thank you. Does it depend on the type of facility? Is a EU, I mean, if it's a federal government territory as opposed to a state kind of factor.

[Charter Ames (Office of Legislative Counsel)]: So I think that's a great way of pointing out kind of the difference between what DOJ might be doing and what a state DOC can do. If the federal bureau of prisons decides as it has, that it will be housing transgender and gender diverse individuals based on genitalia essentially or assigned sex at birth. It it can and has, but that is not automatically a requirement for state correctional facilities. Okay.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Thank you. Any other questions on this, okay? Not

[Charter Ames (Office of Legislative Counsel)]: a simple bill and an area with a lot of moving parts. Moving forward to the rest of section six, this is on page 12, line two. So on subsection or on on line two, in subsection b, this requires the commissioner of corrections starting next year to submit on an annual basis to house corrections and this committee. The data that they're required to submit are two kinds of reports that they're required to submit under the federal PREA regulations, which are essentially reports about sexual assaults that happen in correctional facilities and any investigations for those results. The reason it says starting in 2027 and does not identify a date is because DOC testimony explained that when they actually submit that report can change year to year depending on when they get parts of the information or when they get direction from federal authorities. So this captures that the idea that they need to submit whatever they submit to federal authorities whenever they submit that to house corrections and this committee.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Say the federal government stops doing this, do we not wanna say something like data required or similar or something? Interesting. I think the hope was

[Charter Ames (Office of Legislative Counsel)]: that as drafted, subsection b says the data that you have to provide essentially two reports in this regulation, have to provide regardless of whether you're providing them to the feds on an on an annual basis. But I will think more about whether there are any clearer ways to make sure that subsection b is doing that. Because I think it's a fair point that we're both trying to capture. I think DOC testimony asked that this not duplicate their reporting requirements. So it uses an explanation of the data required based on their federal reporting requirements. And there's I think as drafted, doesn't it doesn't matter if that regulation stops requiring reporting to the federal government. One answer is that there is shortly a review and report back regarding career reporting. So there is a built in check-in about this. If there were changes to federal reporting, that review and report back would create an opportunity to revisit this. But I'll think more about whether there's a way to make subsection b clear on that.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Thank you.

[Charter Ames (Office of Legislative Counsel)]: Subsection C on line six, on or before January 15, the Commissioner of Corrections shall adopt policies to implement the provisions of subsection A of this section. DOC already has policies implementing the Prison Rape Elimination Act standards. I do not have the number of that policy, but happy to follow-up with that. So would DOC has shared that it that date to adopt policies is feasible. That they might look at the policies they have, but that they essentially are already following those and and have those in place.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: So usually when I see January 15, that date was intended to be something that the legislature could consider. And now hopefully we're using December 15 because that gives us more time and we know in advance. But if the legislature isn't going to have say in the policies, then it doesn't really need to be January 15.

[Charter Ames (Office of Legislative Counsel)]: I think that's correct. I think house corrections landed on that as a kind of give DOC up to six months or six months or more, I guess, to to make this, but I don't think there was a magic to house corrections selecting that date. DOC did not object to that date. I think if you're planning to hear from DOC, then Okay. We'll let us clarify with them if they had Thanks. Preferences. The next few sections are short or at least straightforward. So section seven, section eight, and section nine make changes just in other parts in three other sections in title 28 just to reflect that this bill changes because it adds definitions, changes some of the numbering of existing definitions. So this is just a conformity in title eight. If the bill is going to change the numbering of existing definitions and you cross references to those definitions and other parts of title 28 should reflect the updated number. So that's what section seven, section eight, and section nine do.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Great.

[Charter Ames (Office of Legislative Counsel)]: The the quickest you'll see me move through three sections at a time. On page 13, line 17, this is section 10. So I think as flagged by representative Gail Betty and as in touching from the search section, this includes a mechanism for the Department of Corrections, which is currently revising its search policy to submit that search policy to the joint leg legislative justice oversight committee to review. DOC said that August 1 was was doable for them. And then subsection b, joint justice shall review the policy and recommend whether updates to the policy are warranted and what, if any, statutory changes may be worked. So this was a way of setting forward standards related to searches while acknowledging that the department is in the midst of revising its policy. And this is a way for the legislature to revisit any potential statutory changes it thinks necessary in light of that revised cost. Page 14, line four, section 11. This is what I just mentioned regarding kind of a review and report back related to the PREA standards and reporting. So on or before December 15, DOC shall submit a report to House Corrections and this committee, and the report shall identify any changes to the standards reporting requirements under REA. So that's a way for if either the federal government has made changes to the regulations or to reporting, this is kind of the balance this bill struck in continuing current protections that were viewed as important while acknowledging that there could be changes at the federal level that could necessitate further modifications. Okay. Line 10, section 12, gender affirming care. So the bill as introduced included a section on medical care. House Corrections decided that there were, there was more work and not enough time to do the work necessary on that section. So section 12 provides that on or before October 15, Joint Justice shall review current practices related to gender affirming care in correctional settings and submit a report to House Corrections and this committee, including recommended statutory language. And finally, section 13 is the effective date, 07/01/2026. So I did want to mention the kind of legal developments I want the committee to be aware of, but happy to answer any questions about the bill language before we we turn to that. And thank you for all of the questions that you have already answered. It's nice when I have answers, but good.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Do we have additional questions on this? Okay. Alright.

[Charter Ames (Office of Legislative Counsel)]: So on the legal developments piece. When you say legal developments. So this is developing right of the law. There are times where and I did not draft the original version of this bill, but I have worked extensively on the rewrite. There are times where in drafting a bill, we can affirmatively say there is a constitutional problem here or there is not. Where we cannot affirmatively say that there is or is not a problem, as election counsel, we can say you have strong arguments in defense, and we can make sure that committees are aware of litigation that has happened or enforcement actions as the case is here that have happened in relation to similar bills in other states. So by legal developments, I just want to make the committee aware of litigation related to a California bill that was identical to this bill as introduced, does not bear as much resemblance to the bill as it has been passed by the house. But that litigation raised several claims under the federal constitution because I wanna make sure the committee was aware that plaintiffs had raised these kinds of claims. A court has ruled on most of them at the motion to dismiss stage. So if folks are interested, I am happy to share further information with the committee with links to those decisions. Committees have different levels of interest in going into the weeds. So I will try to stay out of the weeds, but the weeds are available for anyone who wants to wait into them.

[Sen. John Benson (Member)]: I'm I'm interested.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Of course.

[Charter Ames (Office of Legislative Counsel)]: I I I understood the question to be very interested. And so I will share the after this, I will share the two opinions. And if there are any other materials from the docket that you're interested in, I can share those. And then it will just be a link to DOJ's announcement about enforcement actions. I think the materials I will start with, and then I'm happy to follow-up in any way. Just a question. Yes. Will you give your opinion on those? So I can't predict what a court will say. I can say, particularly based on the court decisions in the California case, that there are strong arguments against the four constitutional arguments as raised by private plaintiffs. That is what I can say. Okay. I like the law. The Supreme Court is hearing a case this term. Oh, good. Could change how gender identity is treated under the equal protection clause. So there were a lot of developing pieces here, legislative council were tracking them. And when there are relevant updates, we'll definitely share them. But I'll start with the two I have for now. So California passed a version that was very similar to the as introduced version of this bill, but not, I guess, similar in overall substance and effect to the bill has passed by the house. Several female inmates in California sued to enjoin the California law. It was passed in

[Todd Daloz (Assistant Attorney General, Vermont Attorney General’s Office)]: You do that in

[Charter Ames (Office of Legislative Counsel)]: maybe 2020, 2021, and that soon happened immediately after. California is implementing the law while the lawsuit proceeds. There had not been a decision for several years in the most recent motion motion to dismiss, but it came out last week or very recently. So there are two decisions, one on a first motion to dismiss and one on the second that provide a lot of discussion of the nature of these kinds of claims. So the four claims, there was a First Amendment free speech claim. There was a First Amendment religious exercise claim. There was an Eighth Amendment claim, and there was an equal protection claim. So I'll just kind of walk through those, share the arguments, share what the court said. And what the court said is similar to kind of my assessment that I preview. That would be my assessment of the legal risks to say, have one court who's ruled on something really close. This is the best I can tell you about what a court will do. And then at the end, I'll touch on one even more recent development from last Thursday that is different from the civil suit in California. So on the first amendment free speech claim, the argument that the plaintiffs have made is that the law requires inmates to use certain pronouns and that mandating language like that violates an inmate's free speech rights. The court said that might be true if the law required inmates to use certain pronouns, but it doesn't. It requires staff and employees of the Department of Corrections to use particular pronouns. And that doesn't pose the same First Amendment problems because you can restrict government employee speech in ways that you can't other citizens. And the plaintiffs in this case were inmates and not employees or staff. So for the first amendment free speech, h five fifty similarly does not restrict or require inmates to use any particular guardrails. It does require that employees and staff do. On the First Amendment religious exercise claim, the argument that plaintiffs had made is two of them are Muslim inmates, and their argument is that the law requires Muslim inmates to live with and expose themselves to people who they view as unrelated men, which is a violation of their sincerely held religious beliefs. The court, without doing lots of technical legal explanation, one important legal concept for anyone not super familiar is standing. And that basically means if you want to file suit, you have to show that you were injured and that giving you what you're asking for is going to fix your injury or resolve your injury. And with the First Amendment religious exercise claim, the court said these plaintiffs don't have standing because the law does not require the department to place individuals in any particular facility. It leaves the department with discretion to place them based on a variety of considerations. And it was also true in California, as it would be true in Vermont, that the department was placing transgender and gender diverse individuals in a variety of correctional facilities even before the law was passed. So the court said, enjoining the law, which is what you're asking for, isn't going to resolve the injury that you're claiming. So I think a similar analysis would would or could apply to h h five fifty. On the eighth amendment claim, the court's conclusion was the same. The argument the plaintiffs were making is that the law results in housing transgender or gender diverse individuals in a women's correctional facility, which subjects cisgender women in the correctional facility to trauma and an increased risk of sexual assault and violence. And the court said, again, because the law doesn't require placement anywhere, it lets the department leaves the department with discretion to make placement decisions based on safety and security that the plaintiffs did not have standing to bring that claim. I'm really sorry for this if you do not like the legal beats, but there's one more, one more claim and then I'm happy to answer questions. The final claim is an equal protection claim. So the argument the plaintiffs made was that the law gives preference to transgender and gender diverse inmates' housing preferences over the safety and security of cisgender inmates. The The court dismissed that as like a facial challenge to the law. The court did say that an individual inmate could potentially state an equal protection claim. Not that they could succeed on an equal protection claim, but they could at least proceed with an equal protection claim, that if they applied unsuccessfully for a different bed assignment when a transgender inmate's similar request has been granted. So I think that's a kind of as applied version of something that is also an h five fifty, which h five fifty says that the Department of Corrections has to give substantial consideration to a transgender, gender diverse, or intersex inmates perception of health and safety when making bed or housing assignment decisions. So that is the kind of narrow claim that as applied there, there could be a way for a plaintiff to at least have standing or state an equal protection claim. The analysis would then be kind of a general equal protection analysis. And that's one of those open ended questions currently under federal law. The Supreme Court has not yet said whether being transgender or gender identity is a protected class or whether it requires patent scrutiny. And essentially, the strength of an equal protection claim will depend somewhat on whether transgender status is a protected class. So it's possible that one of the Supreme Court opinions from this term will provide further guidance on that. But for now, that remains a bit of an open question. If transgender status is not subject to heightened scrutiny, then a court would basically ask, is the law rationally related to the interest it's trying to support. And under that kind of scrutiny, it's very likely that a law like h five fifty would be upheld. If it's heightened scrutiny, they ask for a slightly more important interest and that the means in the lobby substantially related to that interest requiring kind of tighter fit. And I think there are strong arguments that the law would still withstand an equal protection challenge under that level of scrutiny. But that's something that we can't really predict what a court will do. And there will be we'll have more information to offer if and when the Supreme Court issues a decision on those most recent cases on this topic. So the very recent development is last Thursday. The Department of Justice announced that it would be opening pattern of practice investigations into California and Maine and how they house transgender and gender diverse inmates. So as I mentioned, California has a law that effectively provides very similarly to what h five fifty does in terms of housing placement. Maine does not have a law. It's in Maine's policy similar to what the Vermont Department of Corrections current policy is. The DOJ investigation is making the same constitutional claims and arguments that the civil suit made in California. So the kinds of constitutional violations that they will be investigating are like what the plaintiffs raised in a California suit. And for anyone less familiar with DOJ pattern of practice investigations, they work differently than a civil suit. In a civil suit, you have to at least show that you can state a claim before you start getting discovery, before you can ask for documents. DOJ investigations, because it's government enforcement, the burdens and risks look different than civil litigation. They can pretty much go right into demanding documents and investigating. Generally, they will have settlement conversations with a party based on their investigation. If the party doesn't settle, then DOJ would file suit and a court would still ultimately resolve any suit that DOJ files. So a pattern on practice claim, they're not usually brought against laws. They're usually looking at either an explicit policy or a practice that suggests there's effectively a practice, a general practice of doing something. So again, Maine is in a similar position to Vermont and that apparently it has a, Vermont currently and that it has a policy of causing transgender and gender diverse inmates at times somewhere that doesn't match their sex assigned at birth. So h five fifty does not necessarily create risk where there is not already risk given that Vermont does look like could be deemed to look like Maine. But it's something for the committee to be aware of in further discussion of this bill. So happy to answer any questions on that.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Do we have questions?

[Sen. John Benson (Member)]: No. But thank you. Was wanting to see her now. I'm awake. I think everyone else is asleep. But those are pictures.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Oh, yeah. It's good. And we'll process, and then we'll have questions. Perfect.

[Charter Ames (Office of Legislative Counsel)]: And I will follow-up with some more materials so that anyone who's interested can look, I'm happy to answer further questions. And monitor developments.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Yeah. Just a general question I'll have is just timing because we don't have a lot of time to do this. So if there's something pending that might change the language, just think about the the schedule, please, is all I'm

[Charter Ames (Office of Legislative Counsel)]: So what I would say is that

[Mary Jane Zork (Executive Director, Vermont Parole Board)]: There are

[Charter Ames (Office of Legislative Counsel)]: always there's always the possibility that developments in the law will change how well legislation can be implemented, will raise new risks. Currently, we have the Equal Rights Amendment, which lists gender identity as a protected class. Works will have to decide. Again, that's a that would be a similar equal protection analysis, but under the state constitution. And so that could potentially raise questions about how to analyze laws that provide differently based on gender identity, even in a case where here, it's giving transgender and gender diverse individuals the opportunity to provide information that a cisgender individual would not have the chance to provide. But in a correctional facility, I think it's a it would be a very unique factual scenario for a court to be considering a bill like this and do that kind of analysis. But all to say that it's always possible that future changes will impact a bill has passed. I think it likely that we would have like, it's possible at least that we have the Supreme Court decision in the next month or so, but that's also they could have through the end of the summer. Mhmm. So I guess I would say whatever the committee would find useful to feel comfortable about however it wants to move forward, I don't think that's gonna be I I can't promise that any of that would meaningfully change in the next month, really. But if there is more information about the DOJ enforcement actions or if that Supreme Court decision does come down, then I can I can share that as soon as I'm aware? Okay. But I think in some ways, I I can't predict whether That's okay. It will really change in the next

[Sen. Russ Ingalls (Member)]: Okay. So.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Okay. Well, thank you very much. This is really helpful. Do we have anything else?

[Charter Ames (Office of Legislative Counsel)]: Okay.

[Sen. Wendy Harrison (Chair, Senate Institutions Committee)]: Alright, so we are adjourned.