Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim, Chair]: So, perhaps, we just recycle the We're same back in senate judiciary on February 12. We have the defender general with us. We're shifting gears back to s one ninety three, And, floor is yours.

[Matthew Valerio, Defender General]: Thank you. I'm Matt Delaria, the defendant general. Had a chance to take a look at s one ninety three. Let me say, as a predicate to specific comments on the bill, that my office has always supported the creation of a forensic hospital for treatment of individuals who are involved in the criminal justice system. We had one for forever, and it basically got washed away with the I think it was Irene. And we haven't effectively had one since. And that causes a huge hole in for group of people who get involved in the criminal justice system, who are either insane and not responsible criminally or they're incompetent and cannot participate in their own defense. And the concern since that time has always been that whatever facility ends up being created, it has to be done constitutionally. That is, that it has to be constitutional. It has to focus on treatment, both physical and mental and rehabilitation of individuals with mental illness or traumatic brain injury or other brain injuries or brain diseases or defects that would basically put them there. And here is the fundamental one line to remember whenever you are dealing with this stuff. To be constitutional, it cannot be operated in a manner that is akin to incarceration. It is not about punishment. It is not it is all about treatment. Once you get into the realm of somebody who's mentally ill, they are ill. And whether they're insane or whether they have an illness or mental defect that makes them incompetent to stand trial, the focus must be on treatment, not incarceration. And where we create systems that we call it you know, you can call it whatever you want. You know, if it looks like a duck, wax like a duck, quacks like a duck, it's a duck. And if it looks like a jail, acts like a jail, and the like, it's a jail. And you can call it a forensic treatment facility if you want, but it's not gonna get you out of out of a problem constitutionally. Honestly, it was the issue that brought effectively brought down Woodside, where it was sold as a treatment facility. And then, you know, everybody looked feds looked at it, my ops lawsuits, millions of dollars of tort liability later, and ultimately, it had to go away because it was a jail. It wasn't a treatment facility. Senator Philip Baruth has a question.

[Sen. Nader Hashim, Chair]: Oh, okay. Yeah. Don't know

[Matthew Valerio, Defender General]: if she was just sitting there with her hand. I

[Sen. Nader Hashim, Chair]: appreciate that. Is there so as as this is my understanding being proposed, it would be housed within a DOC facility. That would, in my view, look like a jail, act like a jail. Do you see any way that it can be housed in a prison Well, what be constitutional?

[Matthew Valerio, Defender General]: In a prison? I don't know. I it was one of the you know, as I went through the bill, one of the things is why is the commissioner of corrections in charge of this? Why is it Mhmm. Within a it it is one of the indicators, at least, that this is not as proposed a treatment facility, a hospital. In fact, it is either a jail or akin to a jail. And it raises huge big red flags for me. And and by the way, well, honestly, you just kinda be unfortunate. The thing is I know too much about this sub this particular subject, but I did also out of an abundance and caution pass this by our appellate division to see if there was anything kind of new on the horizon. And really, there isn't. In fact, what you've seen is a refining of definitions and of timeframes and of procedures that are acceptable and some that aren't. Quick question.

[Sen. Nader Hashim, Chair]: The basis for for what you're saying here that it can't be operated in a manner that's akin to incarceration. Where does that come from?

[Matthew Valerio, Defender General]: There's a whole line of case law on it. It's all over the country.

[Sen. Nader Hashim, Chair]: Yeah. It's place I can start.

[Matthew Valerio, Defender General]: Well, yeah. I mean, Jackson versus Virginia is one of the main areas that talks about the procedural and substantive fourteenth amendment due process rights that are afforded to people who are mentally ill or incompetent and held in a forensic facility. I mean, one of the things and I was coming up on it because this bill is replete of these problems as it exists. And I know why because the focus of the bill is on public safety, not treatment. Jails are really good at public safety. They're not really good at treatment. And but when people's concern is public safety and not treatment, you end up with a forensic facility that is a jail. And those all around the country have been subject to attack and various receiverships and all kinds of things by federal courts. I'll just go through this a little bit on sub C on page two. If that is that for that, for example, that particular section violates Jackson versus Virginia, which says that under the fourteenth amendment, you can only hold someone who is incompetent based on what they what they refer to as traditional civil commitment proceedings for a duration that bears a reasonable relationship a reasonable relation to a reasonable time for the person to be restored to confidence or determine that there is no substantial probability that they will attain confidence does not allow indefinite detention as the as this proposed statute seems to suggest. The this kind of issue arises multiple times. Same thing happens in sub d, where it says that they can't be discharged for refusing to receive restoration services. Everything has to be related to a treatment modality, not kind of arbitrary timeframes or arbitrary things that are not related to treatment. These are factors that are related to public safety, which I understand. Now I I I wanna say too that at this point, if somebody's declared incompetent or insane, the defendant general's office at that point is out of the pits. Legal aid comes in and is litigating hospitalization orders, nonhospitalization orders, conditions under each one. They're the ones who do the reviews. We don't do that stuff. So I just happen to have a fair amount of experience dealing with this stuff. And so I have no problem coming in here and talking to you about it. This issue raises itself again in sub e on the next page. And What it oh, crap. I I'm trying to get this to line up so that I'm doing this right. Start over, I guess. It says competency restoration services shall be maintained until the person receives a verdict in the person's underlying case. That on its face is not constitutional. The you cannot basically treat somebody this I mean, maybe this was written poorly, but you cannot treat somebody indefinitely to try to restore them to confidence because there's some people who can't be restored to confidence. And I just I wanna get back to my notes. I have them side by side on this page, but they don't seem to line up when I talk about them.

[Sen. Nader Hashim, Chair]: Matt, there was a Good. Suggestion.

[Matthew Valerio, Defender General]: Basically, what it what it what I I wanna read the full truth just of the case. Yeah. But it says this is the bottom line is you can't indefinitely do that. And and the cases around the country say you probably can't do it for more than a few Like, the longest we've seen is six months. Usually, there's a line of cases out of the, like, Ninth Circuit that are limited to, four months. This issue raises up again and again and again in this And, you know, I don't know who is you know, I'm I'm guessing it'll be legal aid or the ACLU or somebody who is, you know, is going to be filing lawsuits under this if it was passed as written. But, you know, as it as it stands, it's a bit of a problem.

[Sen. Nader Hashim, Chair]: Do you have a chance to see any of the recommendations from the agency of human services?

[Matthew Valerio, Defender General]: Those were not provided to me. There

[Sen. Nader Hashim, Chair]: there was one regarding whether or not if competency cannot be restored and having a hearing held within forty days, I'm just rereading this here, but same idea that a person will be committed to the facility unless they establish a clear and convincing evidence that they won't pose a risk of bodily injury. And if that finding is made, then the person could be released under prescribed regimen of care. Yeah. And there's a few other conditions in which the person would be released. And I can I can send you that the document? But

[Matthew Valerio, Defender General]: Yeah. I mean, that was another issue appellate pointed out, which was one I had already seen, but shifting the burden of proof to the person who's being held to prove that they aren't a danger as opposed to the entity, which is the state, who seeks to hospitalize or incarcerate them having the burden of proof that they are actually dangerous. The appellate division advised me, and I there was an issue I had seen as well, that the burden of proof is all should all is always on the state to prove that somebody is a danger if they seek

[Sen. Nader Hashim, Chair]: to hold them. I think, one, that was a question that I had initially too. My understanding at the moment is that it would be in some ways similar to holding without bail and they're initially held. And then if after the state meets that burden, but then the person who's being held has the opportunity to contest that and show that they actually wouldn't be a danger.

[Matthew Valerio, Defender General]: Well, you can always produce evidence to the contrary, you know, to rebut the state's case, but the state would still have the burden of proving that you're danger as opposed to you having the burden. And if you notice, there's also a little nuance here where the it puts the way this bill is written, it puts a burden by clear and convincing evidence on the person being held to prove by clear and convincing evidence that they are not a danger. So you gotta prove a negative. And then if the state seeks to rehospitalize, burden goes back to the state, but it's only a preponderance of the address. So it puts a higher burden of proof on the person seeking to be released than it does on the state seeking to hold them. That's later on in the bill, but both of those things are an issue. You can use whatever burden of proof you want to, but I think that my understanding is that to hold somebody, whether it's in a in a facility like this, you have to have at least clear and convincing evidence to do it. You can't do it by a preponderance. Just

[Sen. Nader Hashim, Chair]: I don't know why I can't keep you straight in my head, but it's preponderance, clear, and convincing beyond reasonable doubt. That's the sort of levels of growth, right, of ethics.

[Matthew Valerio, Defender General]: You know, there are other nuances to that that are not worth going into, but that is of what we're

[Sen. Nader Hashim, Chair]: talking about. Yeah. I'm happy to talk about the nuances offline.

[Matthew Valerio, Defender General]: Yeah. The dismissal provisions on page three and four, we also identify as being unconstitutional because you can't face a decision on whether a case has been inactive for an arbitrary period of time Once somebody is incompetent, they have the right to these reviews. It can't be just you can't decide basically how to treat somebody based on the length of punishment that would be available if the offense that they are not competent to stand trial for is over a certain amount or not. Once you become once you're in the realm of mental illness, now we treat you like somebody who has been involuntary committed. We don't base whether you can be held or whether you have a life imprisoned case or a, you know, two year misdemeanor like that. The as written, this looks like a mechanism for punishment because you can't really how how do you describe a system where the length of time you can be held when you're confident is based on the maximum sentence and not your mental illness? It is it it just provides more evidence of what is know, kind of what the intent is here.

[Sen. Nader Hashim, Chair]: I don't know if I'm looking at are you looking at section two?

[Matthew Valerio, Defender General]: I am looking at page Three and four. Three and four. There's a lot in Section two

[Sen. Nader Hashim, Chair]: is what you're looking at or sections three and four?

[Matthew Valerio, Defender General]: Page three and four. Okay. And it is section two and three.

[Sen. Nader Hashim, Chair]: So I'm so at least for section two, I'm not sure I understand.

[Matthew Valerio, Defender General]: For what?

[Sen. Nader Hashim, Chair]: If it's a misdemeanor offense and the person has been found incompetent and they're not being held and the case is just pending in the ether for months, if not years, why would it be unconstitutional to dismiss that case?

[Matthew Valerio, Defender General]: We're I I'm trying to find where you are. It's line 18

[Sen. Nader Hashim, Chair]: on page 30.

[Matthew Valerio, Defender General]: Is the bottom line is it's never unconstitutional to dismiss a case. However, the I think what is implied is that you're gonna have people who are incompetent, who have been held for a really long time being incompetent. And then after that, the decision about whether to dismiss or not is based upon the sentence of the offense, not the health or treatment of the individual. So I mean The the criteria is wrong, and the time frames are wrong. So, basically, you could have a misdemeanor where somebody's incompetent and and they're being held. But if they're and if they're held for two years, then you can dismiss the case. Or if you have a, you know, a more serious felony, aggravated assault, so it's not just through murders and sex cases. Fifteen year felony, somebody doesn't regain confidence, you under this, you could hold them for fifteen years before you get to the point of having the case dismissed. So, like, I don't

[Sen. Nader Hashim, Chair]: think the bill contemplates holding anybody for misdemeanor offenses if they're not competent. Or are you suggesting if they're being held for other reasons?

[Matthew Valerio, Defender General]: Could be any of the reasons. But the bottom line is you can't base you can't have an incompetent person and base their release on the maximum sentence of the offense. It has to be based on a medical reason, not the length of the effect. You see how that see, it's that whole part sheet is long. That that part that that is not a legitimate criteria to I mean, it's great to have the case dismissed, but on what it's not saying is that up until the maximum sentence, we can continue to hold you if you're incompetent before we dismiss the charge. So you can't that's not the right criteria. I didn't understand at the beginning of section three. It says, if the person has been acquitted of an offense punishable by life, and the person is not deemed a person in need of treatment, then these things what are we talking about? Are we talking about, like, a particular psychotic break that is unlikely to or no evidence that it would ever recur? I don't know. I'm trying to figure it out. Because usually what happens if you have a life in prison case and you are found insane and as a result you're acquitted. I don't know that I've seen one where the person is not being do they mean that that you have found the person being in treatment or you're not? I I was confused by that. Do you do you know what it's getting at?

[Sen. Nader Hashim, Chair]: Was explained to us. And I I think that I don't wanna

[Matthew Valerio, Defender General]: It must be like just like a temporary psychotic break or something. That's all I can think of.

[Sen. Nader Hashim, Chair]: Jared, do you have can you chime in on that? I can. Really articulated. Jared Bianchi. So first, just to get back to the the misdemeanor dismissal.

[Jared Bianchi, Deputy State’s Attorney]: Nothing about the the draft is linked to holding a person just valid by misdemeanors only. It does not create a category for holding people as a result of anything. This is just a separate and distinct section that is modeled on other states where a case where a person is that is pending for a period of time with the person being caught, eventually is dismissed. Nothing about holding that person, certainly nothing about aggravated assault. With respect to that permission that general Boleri was just reading, that is one of the sections that didn't offer some clarifying language more directly modeled on the federal piece, but also clarifying, because it's a person, it's a person who's in the hospital level care. That's the intention there and that's the modification I got. Thank you. Senator Rose? Am I right in understanding, in terms my question for you, that that language that we were just talking about is a sort of maximum, like if a case is pending and it reaches that point, it must be dismissed. There's nothing stopping it from being dismissed at any point along the way. Correct. That that that is just the longest amount of time it can end without being addressed.

[Matthew Valerio, Defender General]: The division advises me, you know, it's fine that you can't have a criteria that's not mentally health based to you know, if if you if this is I I mean, maybe it's just out of place in the statute because it's a it's a seems like unrelated. I mean, the I I don't know. The cases that they refer me to that you should look at are the Jackson versus Indiana and Bucha versus Louisiana.

[Sen. Nader Hashim, Chair]: Can you spell that second one?

[Matthew Valerio, Defender General]: F o u c h a versus Louisiana five zero four US 71. That's a 1992 case. The we've already talked about the burden of proof issue. And, you know, one of the things they did updating on because I didn't tell, put it on the federal level. 19 USC forty two forty one is a federal statute regarding incompetence. The the the feds can hold someone securely on a finding of incompetence for four months, and that can only be extended if the court finds that they're about to regain confidence. Recent habeas cases out of the Ninth Circuit indicated that because individuals were held in a facility for competence restoration, but they didn't get competence restoration services right away, and they defined right away as were not provided within days of detention, meant that the court treated the detention as not for treatment but for nontreatment purposes, which violates due process. The Ninth Circuit also ruled that a holding holding incompetent people in jail for periods more than seven days while awaiting a bed in the state hospital was also illegal because the jails are not a suitable place for confidence restoration, And that is goes to the issue that senator Dyhovsky brought up earlier. California has a two year maximum for incarcerating someone for confidence restoration. California Supreme Court held that there was a that that was a hard limit, and it allowed courts to extend the limit would be a fourteenth amendment violation of the US constitution. The state, however, can always move for a traditional civil commitment at the two year mark and get themselves out of that, what was an unconstitutional process in California. The Florida Supreme Court ruled that if someone doesn't regain confidence after five years, they must be released or civilly committed. The bottom line is that we need a forensic facility. We just need to do it right. And the way this seems to be written is it's all about public safety and not about what forensic facilities are supposed to be about, which is treatment of people with mental illness. The this is something the nation has struggled with because and people struggle with because you see the results of what occur when mentally ill people do things that are, you know, awful. But once you get out of the kind of criminal realm, the whole paradigm of what you need to do to treat them and deal with them is different. Those are not things that my office will be dealing with. And, you know, we will probably necessarily end up with sort of the aftermath if cases end up coming back, you know, into the criminal arena. But it is I don't know. I think there needs to be some work done on this.

[Sen. Nader Hashim, Chair]: Yeah. There we are getting some suggested edits, and there are also suggested edits from AHS and the others from the state's attorneys. So we'll be getting second version of this drafts in the next week, which may or may not address some of these issues. But

[Matthew Valerio, Defender General]: Yeah. I mean, I don't I I have significant concerns about the commissioner of corrections being in charge of a treatment facility for mentally ill people.

[Sen. Nader Hashim, Chair]: Committee, any questions or comments?

[Matthew Valerio, Defender General]: I just wanna make sure I've touched everything. Okay. I think I get most of it. Okay. Well, thank you. Just you know, I don't know that I wanna go through it and rewrite the whole thing, to be honest. It's not my you know? Unfortunately, it puts me in a position of kinda being on the outside saying, this thing, this thing, this thing. But, you know, there probably could be things that you could suggest. But, you know, I don't think that the Department of Mental Health would appreciate my suggestions on how they should run their shop. Yeah.

[Sen. Nader Hashim, Chair]: Well, thank you. Committee, we're still ahead. And so I wanna give Jared an option if you wanted to respond to any of this. If you have ten minutes or so.

[Matthew Valerio, Defender General]: Sure. That'd be fine. I can

[Sen. Nader Hashim, Chair]: wrap up here.

[Matthew Valerio, Defender General]: I'm sorry I can't stick around. I've got too much. No worries.

[Sen. Nader Hashim, Chair]: Matt, you said it would be legal aid that would step in to represent

[Matthew Valerio, Defender General]: folks

[Sen. Nader Hashim, Chair]: in this system?

[Matthew Valerio, Defender General]: A couple of years ago when you guys passed s three, we used to do the hospitalization and orders of non hospitalization hearings to develop the initial orders, and then legal aid came in. And legal aid in our office were at odds to some degree about, you know, we didn't like the way they did it. They didn't like the way we did it. They ended up taking over that portion so that they could litigate their own orders. Great. And so, you know, after the finding of incompetence or insanity, they come in.

[Sen. Nader Hashim, Chair]: Couple of things. It might make sense to hear from them and if they have a way to navigate it.

[Matthew Valerio, Defender General]: They're

[Sen. Nader Hashim, Chair]: comes to the probably the most important. From all legal aid? Oh, yeah. We did hear from them a week or two ago, but we'll bring them back. One, I think sorry. Can you just reintroduce yourself? My apologies. Jared Bianchi, deputy state attorney. General Valerio mentioned a piece having to do with company restoration services, maintain purchase offers to receive the verdict. Of course, the intention would not be to maintain services for the person.

[Jared Bianchi, Deputy State’s Attorney]: They should be appropriate services that are necessary and well received. I think an easy way to deal with that is simply change the shall to may, where which page in line are you on? This is page three in the and as currently before the committee, page three, line five, subsection e. This company competency restoration services shall. I think May would address his concern and would not alter the nature of what we're trying to accomplish there. We're not trying to impose services that are effective or appropriate. I I think that there was some confusion about the way that the it's gonna dismissal piece fits into this. It that is not intended to bring misdemeanor cases within the ambit. The the reason it's there in the statute is because it would be a new section of this of the law. And so if you look at the way that the bill is structured, there's these are new sections, and then there's a a section, new section a, that creates a special version of the competency for these life offenses, and then another new section later that talks about dismissing this meter. So it's structured around the flow of the the chapter as it currently stands and and serving these statutes within there. Senator Lewis. As it currently stands, those misdemeanors could pen forever. Right? So this is a hard line and, like, no, they may not pen forever. That's right. Okay. That's that that's yes. That was correct. Right. And in terms of the burden question, think we already went over it in our testimony, but it is structured on on the federal model and it really is structured around a circumstance where a person's already been adjudicated. So I'll leave that testimony where it was. I think maybe because I know that you have limited time, was there anything in particular there was

[Matthew Valerio, Defender General]: one other piece I wanted

[Jared Bianchi, Deputy State’s Attorney]: to touch on when he was talking about subsection C and didn't catch, I think was section A. Nothing prohibits addressing the cases through a rule 48 motion to dismiss. So while there are statutory provisions in here that go to certain discharge criteria, one of the ones that the general noted really had to do with keeping a person there until a case was dismissed. Well, rule 48 allows dismissal of a case in the interest of justice, and there's a judicial test for that. But that that's the mechanism that already exists. It doesn't need to be codified here to address a circumstance where a person it's no longer clinically appropriate or the person's not historical, etcetera. That's already a part of the criminal rule that could be not fair.

[Matthew Valerio, Defender General]: Thank you.

[Sen. Nader Hashim, Chair]: Committee well, committee, any other follow-up questions for Jared? Okay. Yeah. Just wanted to give you a chance to respond to Thank you. Not valerial. Okay. Thank you. Thank you. Doesn't seem too

[Matthew Valerio, Defender General]: complicated. Simple, though. Alright.