Vermont Legislature SmartTranscripts:

[Speaker 0]: We are live.

[Speaker 1]: Hey. Good morning. It is January 20. We're in subjugationary. We've taken about the past one ninety three, and we have the Legion Council here to give us the initial walk.

[Speaker 2]: Okay. Thank you. Kate McBlen, Office of Legislative Counsel. Nice to see everybody. This is sharing.

[Speaker 0]: Oh, there we go.

[Speaker 2]: This is a bill about creation of a forensic facility. There have been many iterations of forensic facility bills over the past five or six years. This particular bill is a little bit unique to the ones you've seen in the past. The past few years you've seen a facility that would be operated by the Department of Mental Health and have more of a clinical and treatment perspective. This version of the forensic facility proposal would be operated by the Department of Corrections. And it would not be linked to the person staying at the forensic facility as being a person in need of treatment, meaning that they need the clinical definition of needing involuntary mental health care. For that reason, Eric is here, we're thinking that if you continue with this proposal in this forum, that the judiciary team might be staffing it as we move forward. But for today, I'll walk you through the bill, and I'll do my best to answer questions and we'll go from there. So, there are two specific populations that this bill indicates would be candidates for the forensic facility. The first is individuals who are acquitted by reason of insanity of a crime that is punishable by a life sentence. The second group is individuals who are not confident to stand trial for a crime punishable by a life sentence. We're gonna look at both of those populations and the admission criteria in separate sections. But for the purpose of understanding the bill, I actually think it's easier to jump in halfway and then go back. We have a section, section four, that describes what the forensic facility is, and I think that is maybe an easier place to start. So the bill is structured numerically so that the sections appear in order. But here is our section on the FRED facility. So as the section indicates, the Department of Corrections would operate a locked secure facility for the assessment safe housing of persons at any stage of a proceeding falling under the Insanity as a Defense Chapter in Title 13, or individuals who have been acquitted of certain crimes. This facility is, what I think of is a no refusal facility. If a person is ordered to the facility, the facility has to accept them. There are no clinical or diagnostic prerequisites for coming into the facility, and forensic clinical and competency restoration services, will be overseen by a clinical services director. In subsection B, we have a Public Records Act exemption, with this exception that any record shall be made available to the parties with the underlying crime criminal case upon request.

[Speaker 1]: Katie, can I interrupt and ask a question here? Perhaps I'm getting too ahead of myself, but how could there not be any clinical or diagnostic prerequisites for admission if it's required that the person found not confident in SAM trial before there has to be.

[Speaker 2]: That's a good question. Yeah, and there would be some at court process to determine if it's competency to stand trial, but remember when we're making determinations about competency to stand trial, that's a different determination than if, for example, somebody is needing mental health care and would be a person in need of treatment. So I think that's what that is trying to tease out, that this assessment would be competency to stand trial in a criminal court context and not whether they need involuntary mental health treatment in the mental health context. And I'm sure that's something that we can continue to look at and tease out as we work through that, but that's sort of my quick interpretation of that.

[Speaker 1]: Thank you.

[Speaker 3]: Excuse me.

[Speaker 2]: In subsection C, says that persons are to be admitted and maintained at the forensic facility pursuant to sections 4815A and 4819A. Those are the two sections that we haven't looked at yet that take each of those categories of persons separately for the person, for the purpose of admission to the forensic facility. And then, we have language directing the commissioner of the Department of Corrections to adopt rules. Can keep going to the end of the bill since we're here, but the section five is a specific rulemaking authorization for their forensic facility. So this does two things. It tells the department that they have to adopt rules, but that they may adopt or that they shall adopt emergency rules while the process is pending for the adoption of permanent rules. As you know, permanent rules can take about a year and if the idea is to have a forensic facility up and running before the rules would be ready, this language would authorize the department to adopt emergency rules so that there'd be rules in place to open the forensic facility earlier. And then we have this language in section six, and this language limits the applicability of the Morocco's evidence in proceedings involving competency restoration and also release from a forensic facility, so that's being added to the list here.

[Speaker 1]: Where was the rules of evidence piece I missed?

[Speaker 2]: Section six. There's a list and items being added to that list. Proceedings concerning competency restoration, and then granting our revoke

[Speaker 3]: and petition release from the facility.

[Speaker 2]: That brings us to the second half of the bill. Now I'm gonna go back up to the top of the bill. Okay, so as I said, have two sections that are dealing with admission of two different populations. This first section, deals with competency restoration services in a friendly facility. For a group of individuals who've been charged with an offense punishable by a life sentence. These are people who have been deemed, that they haven't been deemed a person in need of treatment. So again, a person in need of treatment is a defined term in Title 18. A person in need of treatment is a clinical standard to be admitted involuntarily for treatment. So it's a person who has not met that standard. And it's also for an individual who is found not competent to stand trial. So that's what we're covering in subsection A and subsection B. Upon admission to the forensic facility, a person is to be evaluated for competency to stand trial at least every six months or upon a determination that the person is likely competent to stand trial. And the results of this are given to the court and the parties of their underlying criminal action. So there is a rolling assessment that's being done. The person is not at a forensic facility with, I don't know, without any oversight. This is indicating that regularly there has to be a renewed evaluation of their competency to stand trial. So at least every six months or if at some point during their treatment, perhaps the clinical director finds that they are likely competent to stand trial, they would have that evaluation done at that time, even if it's a shorter increment than the six month window.

[Speaker 1]: Thank Is

[Speaker 3]: there some clinical definition somewhere or a legal definition somewhere of what it means to be competent to stand trial or likely competent to stand trial or is that verily subjective?

[Speaker 2]: No, I believe there is a standard. I have to look at statute. Don't have that in my fingertips. I'm sorry. That's okay. Earned

[Speaker 1]: this, though. Okay.

[Speaker 3]: Perfect. Well then, I'll

[Speaker 0]: Competency to stand trial or returns on the defendant's mental state at the time of the trial as opposed to an insanity defense, which is the defendant's mental state at the time the offense is committed. So competency to stand trial at that particular moment at the time of the trial, if the defendant is unable to understand the nature of the criminal charges or unable to participate meaningfully in their offense between two.

[Speaker 3]: Are is there a world in which both of those things could be true that they were unable to understand what they were doing was not was unable to understand the difference between writing on loud they were committing crime and also incompetent? Definitely. Sometimes.

[Speaker 0]: And sometimes it it also can be one or the other. Absolutely. Yeah.

[Speaker 2]: We're on subsection c. If a person is stays at a forensic facility, excuse me, the person would stay at the forensic facility until they receive a verdict in a criminal case, or the charges are dismissed. So, an ongoing stay at the forensic facility. And subsection D, while at the forensic facility, the person is to receive competency restoration services pursuant to the clinical director's plan, and that may include medication, education, accommodation, habilitation, or other services that are identified by the clinical services director. And if a person is to refuse to receive competency restoration services, that would not be tantamount to grounds for their release or dismissal from the forensic facility.

[Speaker 3]: Is any of that treatment allowed to be utilized involuntarily?

[Speaker 2]: Are you thinking about medications? Yes, there was a line or two about involuntary medication in a court order. Okay. The subsection E, competency restoration continues until the person receives a verdict, and here we go, subsection F. The criminal condition of the Superior Court where the person's underlying charges are pending must approve involuntary medication used as part of the competency restoration plan. The court can only approve the medication if it's clinically appropriate and likely to aid the person's competency to stand trial. So that's the standard for the involuntary medication. Okay, we're, so that is one population of individuals that is served by the forensic facility. We're gonna take a little detour with this section two, and then section three will handle the second population that would be served by the forensic facility.

[Speaker 1]: Can I ask a question about To six steps kind of figure out how the court would make the determination as to what medication the And person should be as I'm reading it, I mean, I would imagine all the doctor or the director has to do is send in an affidavit saying this medication is necessary for treatment? There would there be a hearing or would it just be sending a one line affidavit?

[Speaker 2]: The language doesn't specify. I will say on Title 18, the language around involuntary medication, it's much more robust in terms of the type of filing and the type of information that has to be submitted to the court, right, the hearing in that context. So it may be worthwhile to take a look at that and maybe cross reference or create a similar process here.

[Speaker 1]: Thanks.

[Speaker 3]: Yep. Okay,

[Speaker 2]: so section two, now we're dealing with a misdemeanor. If a person is found incompetent to stand trial for an alleged misdemeanor offense, charges will be dismissed with prejudice if after the finding of incompetence the case remains inactive continuously, or equal to or greater than the maximum sentence, and the dismissal is not necessary if the court finds doing so is contrary to justice.

[Speaker 1]: Senator Reynolds.

[Speaker 2]: I thought that this forensic facility would only apply to people who like me. This is separate and outside, I'm sorry, I knew where you're going. This is separate and outside the forensic facility context. This was part of the request, but this is specific to misdemeanors and this is not specific at all to forensic facility. The way the draft is structured is it goes in numerical order through this chapter, and this is where this language would be added, which is sort of right in between incompetency to stand trial and insanity as a defense. So that is why it's located here. Yes, this is different than apart from the forensic, so like, it's specific to misdemeanors, and this is about the dismissal if the case is inactive continuously.

[Speaker 3]: Okay. I guess I'm just so they would not be eligible to go to the forensic facility. They might be found incompetent to stand trial, and then what?

[Speaker 2]: Status quo, what is happening right now, the forensic facility is limited to the regulations that we're looking at, so tied to a crime, punishable wildlife sentence.

[Speaker 1]: Can tell you what the status quo is. What happens now is it basically becomes inactive. The the person's found not confident. There are a bunch of hearings leading up to that. Then Okay. Basically, it's just the court saying, okay, well, put it as inactive, if something ever changes, then we'll come back to it. But otherwise it just floats off into the ether and down the road. Great. Sounds So this is a great study to collect it.

[Speaker 3]: No. I I I was just trying to understand what would happen. Would that person potentially be subject to an order of not hospitalization? They meet the clinical standard, potentially. That's all. Yeah. Thank you. Okay.

[Speaker 2]: So that was section two. I'm gonna move on to section three. Again, this is the second population that would be served at the forensic facility. So A is the admission criteria. This is the person that's been acquitted by reason of insanity for an offense punishable by a life sentence. And this is a person who is not meeting the definition in Title 18 of a person in need

[Speaker 0]: of treatment.

[Speaker 2]: In subdivision B, the hearing by the criminal division of the superior court has to occur within forty days of admission to a forensic facility. In Subdivision B2, at this hearing, the court will order a person committed to a forensic facility unless the person establishes by clear and convincing evidence that the person no longer suffers from mental disease and upon release would not create a substantial risk of bodily injury to another or serious property damage to the property of another. So that is the standard for holding somebody, and you'll see that language repeated throughout this section, that this is always what the court is coming back to. Does a person meet this standard of suffering from a mental disease, and upon release, is the person, is there a substantial risk they would

[Speaker 1]: cause bodily injury to another or serious property damage to the property of another?

[Speaker 2]: And if a person

[Speaker 3]: Is there a legal definition of serious property damage?

[Speaker 2]: Not in this draft. I think we have a definition of serious bodily injury, but I'm not

[Speaker 1]: sure about property damage. I'd have to look into it.

[Speaker 2]: And then there's a cross reference here at the bottom of the page, the subdivision D2. We'll look at that, but that is the criteria for releasing an individual in the front of the facility with certain conditions. On page five, subdivision D3. This requires a psychiatric or psychological exam to be ordered by the court prior to the hearing, and this exam would be filed with the court. And this is this is a hearing on whether the forensic facility can continue to hold the person. Whether that standard that we just talked about is met. And in subdivision three, have a list of exactly what the contents of the report would contain. So, it would address the person's history and present symptoms, a description of the psychiatric, psychological, and medical tests that were employed and their results, the examiner's finding, and the examiner's opinions as to diagnosis, prognosis, and whether the person is suffering, again, from a mental disease or defect that upon the person's release would create a substantial risk of bodily injury to another person or serious damage to the property of another person. So that is what the exam would cover. In subsection C, we have language that placement at the frenzying facility is for an indeterminate period, that that prior to release the person must make a showing that the, about that standard, that they, to be released, they don't have mental disease, and their release wouldn't create a substantial risk of bodily injury or property damage.

[Speaker 3]: Not having mental disease, does that mean that you no longer have a diagnosis? Because some diagnoses you carry for life and you may be well treated and perfectly capable of existing in

[Speaker 2]: the world. The term mental disease is not defined in this draft, so whether it's tied to a specific diagnosis, I think that is an area for the committee to spend a little

[Speaker 1]: bit more time in conversation.

[Speaker 2]: Subsection D, the Department of Corrections is required to petition the criminal division of the Superior Court where the acquittal was determined for the shorter of either five years, or upon certification by the clinical services director of the forensic facility, that the person meets the standard for release. So there's a regular check-in with the court. And in Subdivision 2, if the court finds that the standard has been met by clearing convincing evidence, that the person is released to the community under a regimen of treatment. So that could be medical requirements, psychiatric treatment, psychological care, that's what would be in the regimen of treatment. And in subdivision B, it says that as a condition of release, there has to be compliance with that proposed plan. In subsection E, the Department of Corrections is required to monitor the person's compliance with that joint vent plan. And if the person does not follow the plan, that they would be returned to the forensic facility, and again, the Department of Corrections would give notice to the court and the court would do that same evaluation, whether the standard has been met. Does the person have a mental disease? Does the person have a substantial risk of causing a serious bodily injury or probably damage? That's the whole bill.

[Speaker 0]: Great, thank

[Speaker 1]: you. Did he have

[Speaker 4]: any other questions? Yeah. Katie, so we're an I'm a confused here. This is quite likely find out, but where an individual, finally, serving five years, post sex serving five years, has found to be competent and release the conditions and so on and so forth, will that individual then face charges of he

[Speaker 0]: or she were allegedly charged with their

[Speaker 2]: These are for that. This section is folks who are acquitted due to reason Quitted, okay. Of insanity. Yeah. Alright.

[Speaker 4]: Thank you. There's a difference between insanity and confidence in state of fraud.

[Speaker 2]: Yep, so the first section of the bill deals with folks who are not competent. The section three of the bill is folks who are avoidant. Oh, it looks like Eric has something to jump in on that.

[Speaker 0]: Just to add Senator Norris, to help understand the distinction between competency and the incentive defense kind of goes to what Peggy was saying, is that the incentive defense is a complete defense. Cause that deals with the defendant's mental state at the time of the crime, and it does never change over time. So if you successfully assert an incentive defendant, you can never be charged with the crime of death. Whereas with respect to competence, that deals with your whether you're competent to stand or not. So if you're not competent to stand trial at any moment, that can be rehabilitated, that can be restored in the future. That, if you're incompetent, you can be tried again, if you're later found competent. But if you're staying at the time of the events, you can't be tried.

[Speaker 1]: Okay. Great. Well, thank you very much. Committee, this will be one of the larger bills, that we work through if we decide to undertake it. There are a couple of pieces in here that I think are important, but it will take a fair amount of time to work through all this, and we will have plenty of witnesses to hear from as well. So just something to happen. Alright. It's Path 25. We have S 208 up next. We take a do you mind if we take a ten minute break? Let's

[Speaker 0]: take