Vermont Legislature SmartTranscripts:

[Speaker 0]: We are live. Good morning. It's February 17. We sent it to this year. We're taking up a new version of s one ninety three, and we have ledge counsel here with us to do the walk through.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Good morning. Good morning. Thank you. Nice to see everybody. Eric Fitzpatrick with the Office of Legislative Counsel. As the chair said, we're to do a walk through of a possible, proposed committee strike all amendment to s 193, which is an act related to establishing a forensic facility for certain criminal justice involved persons. The new draft you'll see is quite a bit of yellow highlighting on it, but I'll mention as I go through, not every instance of yellow highlighting is necessarily changed language because I highlighted a couple of places where it was just questions that the committee had yet to reach a final resolution on, but I think the committee had indicated last week that you were still thinking about those. So I'll point those out as we go through so that you can keep thinking about them today and later in the week, whichever makes sense. So, but in other cases, there's new language that's highlighted. You'll see the first one of those on page one, actually for just two seconds of background if you kind of refresh everybody's recollection about the forensic facility. Remember the idea is that this is a facility for two groups of persons. So there's essentially two tracks of people that are coming in. People that have been found incompetent to stand trial and another group of people that have been found not guilty by reason of insanity, which is sometimes referred to as NGRI, not guilty by reason of insanity. And those folks are often referred to as criminal equities. So they've been found not guilty of everything in insanity. Now not all of those instances go to the forensic facility. They're only with respect to certain offenses. Offenses with a maximum penalty of life in prison, and if the person isn't already subject to the civil commitment. Then they would go in into the forensic facility under the bill after that concept is the same as the bill was introduced and the version that you're looking at found. And in fact, I think it might help before we even go to the first page, because you may recall that key here is the definition of the forensic facility and that's on page nine. So if you take a quick look at the highlighted language on page nine, or least the first part of it, that's lines five through 13. Right? So here's the frantic facility being defined. Now the substance isn't really different than the previous draft that you looked at, but it's been reorganized because I think the committee's concern was this notion that it seemed like treatment wasn't really being highlighted here that the purpose of the facility is treatment. So I reversed, I set up the two subdivisions A and B separately, so you can see what they vote for and reverse the order. So it's the first one that comes A, forensic facility means a locked facility replacement that the Department of Corrections provides for the secure evaluation, treatment and care of persons involved in the legal system who do not require hospitalization level care. So very first thing that comes up front is the fact that it's evaluation, treatment and care. There's a constitutional basis for that because generally speaking, someone can't be essentially committed without some basis. And then the basis for the commitment generally is the fact that someone has a mental illness and there's some other factors that we'll talk about. So the idea is that the person can't just be housed indefinitely without some treatment of the underlying condition. So again, that doesn't change the substance but it reorders it so the treatment is being highlighted upfront in A. B though, second is that the placement is required for the custody control, correct ional treatment, and rehabilitation of persons transferred pursuant to, and then it's got those two cross references. And those are the two that we're gonna get to, the incompetency and the NGRI. I feel we're our reason of insanity. Lastly, the definition, you'll see lines 11 to 13. This is just some language, and this you may be caught in the previous draft as well. Just setting out in this case it's permissive not mandatory but that these evaluations that take place under this chapter can be conducted pursuant to contracts entered into between the Commissioner of Corrections and the Commissioner of General Services and evaluation providers. And I think you're gonna hear from witnesses from both departments later this week as to whether or not that process is gonna work and how it works. So that's the definition. So that's the facility. So then, alright, that's what the facility is. How do how does the person get into the facility? Let's turn back to page one for that. And this is your first group. This is the people found incompetent to stay in trial. So you'll see there's three, again, I I broke this out into separate subdivisions, it could be more clearly stated who it is that that could be subject to the civil commitment process. I'm sorry, to the forensic facility. And so there's three criteria. First one, charged with an offense punishment or punishable by a life sentence, homicide, kidnapping, aggravated sexual assault, aggravated human trafficking. There's a number of offenses that have this maximum life sentence. So it has the person has to be charged with one of those.

[Speaker 0]: Eric? Yeah. When you get a chance, can you get us a list of all the life offenses that so we can put it on the committee page and make sure everybody can review what conduct could potentially lead to this? Absolutely.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Will do. Yeah. Sure. So first, one of those offenses, a person's been charged with one of those. They are not and this is line fourteen fifteen, they're not currently receiving treatment through an order of hospitalization. Now that means, in other words, that's a reference to the civil commitment process. Right? So they're not currently in the civil commitment process. In other words, this is important to remember as we get further into this bill, that civil commitment process is the one where the state has to prove by clear and convincing evidence that someone, is a danger to themselves or others as a result of mental illness. Well, that's in existing law right now. It's a civil commitment process, and that remains in law whether or not this is passed. Right? So you have this forensic facility sort of another track to a different type of facility, but the civil commitment process exists and that also does apply to some crimes. Because remember, look at line 12 again, this is only for life sentences. Right? So someone could get charged with say an aggravated assault, doesn't have a life sentence. That person could be found incompetent to stand trial or not guilty by reason of insanity. And that and because the way the law is set up now that court holds a hearing for that person decides whether or not they're a danger themselves or others and if so they're civilly committed. So that all still exists. It would still exist, should say.

[Speaker 0]: So just to clarify, would that be a hypothetical situation in which somebody is charged with domestic assault? They're found not competent to stand trial, but there's sufficient evidence to show that they're still a threat to that person and they could be required to go for ten days or twenty days to the bridal retreat or some other hospital.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep. And that that they could be ordered if they're found that they're still dangerous, they would be ordered committed to the custody of the Department of Mental Health. And that's where they could end up at Brattleboro or maybe they could do outpatient treatment. I mean, that clinical decision is still a medical one for for the department. But yes, that's And

[Speaker 0]: that's something that exists now and we're not touching that essentially.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Not touching it except that for people charged with a certain handful of offenses, these life sentence ones, they wouldn't go that route anymore. Right. They would go brisk. They'd go for it. Exactly.

[Senator Philip Baruth (Member)]: Senator Baruth. Just a quick wording thing on line 18. Page. This is

[Eric Fitzpatrick (Office of Legislative Counsel)]: page one. Oh, great. Thank you.

[Senator Philip Baruth (Member)]: The word often there seems unnecessary and seems to change the meaning to me. I understand it to be saying not not less than the shorter of either every six months or upon the determination. Not less often doesn't seem to apply to either of the examples that follow. So I'm I'm wondering if we can eliminate often or is that a term of art?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. It's not a term of art. It's really just and I have the same this is the language that Bill is introducing. I thought about it. You see, I did actually somewhat, I did rework it in the don't think I've seen it in the standing context. But in this one, I didn't, but I I it's not term of art, can rework it. I'll tell you what the intent is and that Yep. Then what we'll try and achieve the intent with with clarity. The intent is that the person so let's say this the person does get committed on this track, which is the found incompetent to stand trial for a life offense, and they're not already civilly committed in the on the other side, if that's the case, then they go right to the forensic facility for evaluate and then they would have to have an evaluation either every six months, or when they're deemed likely competent by the clinical services director. So that's the intent. But I think I agree with you if there's a better way for it to get it. But that's the idea of what would happen.

[Senator Robert Norris (Vice Chair)]: Because

[Eric Fitzpatrick (Office of Legislative Counsel)]: in this case, the person has already been evaluated because they had to be evaluated to be found

[Senator Philip Baruth (Member)]: in common. I see, I see. I now I think I understand better. So often does have a function there. In other words, there's multiple times they're supposed to be

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. Every six months. And that may not get there. I when I read it after I've told you the first time I

[Speaker 0]: read it, was like, doesn't

[Eric Fitzpatrick (Office of Legislative Counsel)]: really say it. But then most recently when I read it, well, I guess it kind of does say that, but maybe the fact that it took me twice is an indicator that could be stated more clearly. But the idea is, they go to the forensic facility on this track, they've already been evaluated once because they had to be, to be found and confident in the first place. And then so they get there and then they have to be evaluated every six months. Or that's what they're trying to say here, but not less often because it's every six months, but they also have to be evaluated if the forensic associates clinical services director says, we've reached a conclusion that they're likely competent now. Yeah. So that's what I think it means by the checkers soon hope of the idea. That sort of concept clear. So that's what happens. The person under the proposal goes to the forensic facility, if they've met those criteria and they're re evaluated every six months or when they're found likely competent by the clinical services director. So that's what goes on. If you turn over on to page two now. Now if they do get evaluated, either because it's every six months or because the clinical director thinks they're likely competent, what does the evaluation have to include? Well, at least at the request of a party, the court may order that the second or subsequent evaluation include a forensic risk assessment, that runs two to five, then it describes what's in the forensic risk assessment. So that can be ordered as part of this either every six month evaluation or one at the request of the department. Moving on to subsection C, little bit lower base two now remember how long does the person stay there? Remember under the previous version of the vote had been sort of turning on the person receiving a verdict in their underlying criminal case. Now the content is clarified throughout this section. The person stays there generally speaking until competency is restored or the case is dismissed.

[Speaker 0]: So Eric, I'm curious about hold without bail status. Would they have the $7.05 $5.03 hearing? Actually, you tell me when they would have that hearing in this process? So for example and so I'm wondering if somebody has restored competency, do they go straight into a seven five five three hearing or is that done prior? And I'm just curious, your thoughts on that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I honestly don't know. And I think that one thing to sort of keep in the back of of your minds here is that this forensic facility process is entirely new. It hasn't doesn't exist in Vermont right now. So a question like that, in some sense, I think you could put a message in here that whatever you thought was the best policy.

[Speaker 0]: Yeah. I I don't wanna cause extra confusion in all of this if this process gets created, and I don't wanna leave courts and the parties wondering, do we do the hearing now, or is it supposed to be done while competency is being restored? Uh-huh. And so I I I do think some language around there so that it doesn't cause confusion Yeah. In future cases would be good. So And would

[Eric Fitzpatrick (Office of Legislative Counsel)]: it be does it make sense that the the the bail hearing wouldn't need to take place until unless until a common scene was restored. Is that the idea? No.

[Speaker 0]: You you I mean, you can still have that hearing beforehand. It's I mean, the burden is on the state to to prove the elements as to whether or not somebody is gonna get held without bail. Right. Right? So, yes, it's a good question that we should we're gonna have to take some additional testimony

[Eric Fitzpatrick (Office of Legislative Counsel)]: on The the interaction then? Yeah. Gavin or Bohovsky?

[Senator Tanya Vyhovsky (Member)]: I'm curious. If the person's not competent to engage in their defense, how would they be competent to engage in the bail hearing? I I don't understand how we can put the any hearing or any legal process before competency restoration.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Right. It's a different thing and it could be that if the state is seeking bail, or sorry seeking a hold of that bail, and perhaps it would fall on the person's counsel to contest that, but it may be that that you're right that that because competency is a threshold issue. So it may be that that the court might say that until competency is established, we wouldn't have that hearing. Because in theory, suppose the person wouldn't be well, this is the question about the interaction of it. Might it be that the person isn't being held without bail because they've been committed right to the facility. So that that process in a sense has been interrupted. They're not being held under seven five five three. Again, since this is brand new, I'm not saying I know this. I'm just trying to think through it a little bit. But it might be a good one to think through with judge zoning or Domenico from the attorney general's office as to how that those two processes would interact.

[Senator Tanya Vyhovsky (Member)]: What is the order of operations?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's a good way to put it. Exactly.

[Senator Philip Baruth (Member)]: Thanks, Deborah. Quick question about this is the bottom of page two. Mhmm. The person's refusal to receive competency restoration services shall not be grounds for release or dismissal

[Speaker 0]: from the

[Senator Philip Baruth (Member)]: facility. I don't I don't know how uncommon or common it is for someone to refuse competency restoration. But if they did and they continued to because these are this is a facility with very few beds. Would it be that the person just exists there for

[Eric Fitzpatrick (Office of Legislative Counsel)]: an indefinite period of time? Well, it's possible, but not necessarily so. Charges could be dismissed. So that that's one option. And I suppose that it it's possible. I'm not a a medical expert, but I would think that it might be possible that someone's competency might be restored even if they didn't receive the services.

[Senator Philip Baruth (Member)]: But if if it was if their competency wasn't and they refused, could

[Eric Fitzpatrick (Office of Legislative Counsel)]: they be there five years? Yes. Ten years? Yep. That's the way it's written.

[Senator Philip Baruth (Member)]: I mean, you know, the alternatives are, you know, involuntary competency restoration.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, you could. There is gonna be for example, if if that might include involuntary medication, for example, and that is provided for in So, on page yeah, that could be something that would happen. Okay. Thank you.

[Speaker 0]: Yeah. I think that that also reminds me that this has to take swing through health and welfare as well. We're talking about medication. Yep. Just a general note. Right. Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Before we turn to page three, though, just one last thing to note on page line 17 of page two. It's another remember the committee also talked about this last time is to make sure that these competency restoration services are provided. It's previous previously the language had said May, and you wanted to specifically require that these things are provided to the person. And so the May has changed the shall in a couple of different places. Alright. So then the next question is, alright. So competency restoration services are being provided. How long would they be? That's over on top of page three. How long are they provided? They are provided at the forensic facility or at another location as well discharge plan starting on line three until the person is restored to competency or until the charges have been dismissed. So again, that's how long they're there and then that's how long they have to be getting services as well. So they're getting the services the whole time. The last subsection f center group, I'm just sort of mentioning this piece. This is the involuntary medication language. Commissioner has to receive prior approval from the criminal division for involuntary medication. And then there's a finding that's required before it can be can be ordered and that's lines eleven and fourteen. That's from a particular United States Supreme Court case that lays out the standard to sell The United States and that was actually you may recall the first version of this draft of the bill or not the first version, a previous version specifically referred to the case And you may recall Kate mentioning that we don't usually just say the standard under this case. We we track the language from the standard and and reprint that in the statute. So that's what this is. That language is from that case. It's an involuntary medication constitutional center.

[Senator Philip Baruth (Member)]: Senator Baruth, mister Norris.

[Senator Tanya Vyhovsky (Member)]: Are there other instances where we do involuntary medication, or would this be the only instance in which that would be allowable? No.

[Eric Fitzpatrick (Office of Legislative Counsel)]: There it's under I'm not gonna I'm not gonna be able to provide detailed answers because that's Katie's area. But, yes, under title 18, there's a a specific statutory language as to when embalming medication is permitted.

[Senator Tanya Vyhovsky (Member)]: Okay. And does that also go to the criminal division to approve or not approve?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. That goes to the pending division because that and that those are the civil commitment proceedings. So those aren't in the criminal court. That's when when someone gets civilly committed that process that exists now and which will continue exist for some criminal defendants because, again, not all crimes have this life sentence. So this is a very specific group of people that are gonna be subject to this standard. Well, subject to this process. The involuntary medication constitutional standard is the same in both cases, but different courts and different circumstances. So, yeah, it would still apply to someone who's committed to the to the through the civil process in the family division for someone who either it just happens in the general public, someone petition can be brought to a voluntary commit someone, or it could have been someone who came into the criminal process through a crime other than one of these life sentence ones. Does that make sense to me?

[Senator Tanya Vyhovsky (Member)]: It does. And I this is probably something to explore with the courts. I wonder about sort of splitting up and asking two different courts to follow the same seems to me it might make more sense to have the same court that does it, that has more experience with it, just do all of it. But maybe a question for the courts, especially when we're talking about a small subset.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Mhmm. So yeah. There's no reason that you couldn't if the family division is has the experience with the involuntary med situation, no reason that you couldn't say for subsection f, hey. If the commissioner wants to do this, they have to file they have to pursue that piece in the family division because they're the one they're the one that covers that issue generally.

[Senator Tanya Vyhovsky (Member)]: Yeah. It just seems silly to me that we would recreate a whole process for a tiny group of people when the process already exists and maybe is working.

[Speaker 0]: Great. Great. Just to clarify, is the kind of the underlying point or question, should it just be the family division Mhmm. That's doing the approval?

[Senator Tanya Vyhovsky (Member)]: Yeah. That is the underlying question. Should the involuntary med orders just all go through the same process that already exists?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. So I'm sorry. Yeah. Yeah. Sorry.

[Senator Robert Norris (Vice Chair)]: So I'm trying to figure out under what circumstances would anybody, the judge or the prosecutor, a competency evaluation without the defense bringing this to the forefront. Who would request this competency reevaluation? If they did, why would if you if the prosecutors or the judges did, why would they do that if not upon request of the defense attorney?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You mean for someone who's in the facility?

[Senator Robert Norris (Vice Chair)]: At any point in time, who would request the confidence registration?

[Eric Fitzpatrick (Office of Legislative Counsel)]: If the if the criminal case is ongoing Yeah. And and it's prior to any of the sprint this prior to there have been a finding of competency, incompetency, which could trigger them being sent to the principal.

[Speaker 0]: But we're still in

[Eric Fitzpatrick (Office of Legislative Counsel)]: that case, then competency can be raised by anybody. It can be raised by the prosecution, the defense, by the court on its own motion. Again, it's that whole idea that competency is this threshold, issue. It's unconstitutional to trust somebody's incompetence. So if any of the parties in the court has a reason to think that that the person might be lacking competency, they can request an evaluation before this even happens.

[Senator Robert Norris (Vice Chair)]: So how often would that happen? Or you probably don't know that answer. That the prosecutor or the judge requests this without the defense requesting it first.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't know the answer to that. It's a good question, but you probably wanna ask the Department of State's

[Senator Robert Norris (Vice Chair)]: attorney why? If I'm we don't

[Eric Fitzpatrick (Office of Legislative Counsel)]: and the sorry. The defendant general court who most often requests this.

[Speaker 0]: In my brief experience, I can say it's generally the defense that raises competency as an issue. There are circumstances where a person's coming in for the first time at arraignment and all three of the parties well, the two parties in the court are seeing the person and, you know, there may be a bench conversation where everybody agrees potentially that it makes sense to have a common lease evaluation. But Mhmm. I would say, generally speaking, in my brief experience, it's mostly the defense that raises it.

[Senator Robert Norris (Vice Chair)]: And and and that would back and back to senator Paulskey's question as to if there's a defense, generally speaking, asking for the competency evaluation, then we start looking at bail. If the defense has a question as to whether they may be competent, how would they become to stay in in in picking up a particular piece of it, obviously. So

[Eric Fitzpatrick (Office of Legislative Counsel)]: Interesting question for for either the defendant general or the state's attorneys. Like, how does that process work now? Because it happens plenty that competency is raised. So if how do they deal with bail today? Do they and I don't know the answer. Do they defer that? Because they're gonna because as you point out, it's maybe there's no basis to ask the person to participate in a bail hearing if they're incompetent, so maybe they set that aside the same way they defer to trial. That's what's they don't proceed with trial. They can't, constitutionally.

[Senator Robert Norris (Vice Chair)]: And I know we all we all know that they have a right for a bail hearing, but if their competency is in question, then that kinda kinda moves the waters a little bit, I I would think. So I'd like to ask those individuals as they come in. Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's a good question. So there's a separate section, so we're kind of transitioning now. That's sort of the end of the competency way to get into the forensic facility. Now section two deals with a different issue related to competency. Now this is the language that's proposed to be added that essentially adds or takes some findings of incompetency and dismisses them. So if a person has been found incompetent to stand trial for a misdemeanor, right? Gotta be a misdemeanor. But if the case is inactive for a period that's either equal to or greater than the maximum sentence, then the court dismisses it. Dismisses the case. Unless the court finds that dismissal will be contrary to the interests

[Senator Robert Norris (Vice Chair)]: of justice. So that's

[Eric Fitzpatrick (Office of Legislative Counsel)]: the process, this idea that you'll hear from witnesses about this I expect, but from what I've heard anecdotally is that there's many of these cases sort of hanging around and that there have been incompetency findings that are old on the books. And in an effort to dismiss some of these cases that aren't active anymore, this would prevent that.

[Senator Robert Norris (Vice Chair)]: Senator Mosby, do you have a question?

[Senator Tanya Vyhovsky (Member)]: I can wait until rest of board. I don't think it's a question for legislative council. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Highlighted language there you see like 2021 because that's an unresolved issue that the committee has heard different testimony about. Should these dismissals be with or without prejudice? In other words, should the dismissal should the prosecution be permitted to refile them or not? It's with prejudice they can't. It's without prejudice they can't. And I think you've heard a difference once a year as to whether or not that's the right result. Pure policy question for you. Before we

[Speaker 0]: move on, what's what are the committee's initial thoughts on that? With or without? With or without.

[Senator Philip Baruth (Member)]: In line with our thinking about and efforts to reduce the backlog, it seems like if it's a misdemeanor offense and it's been hanging around for years, and there's the possibility that the court could extend it anyway, it seems like with prejudice makes sense

[Eric Fitzpatrick (Office of Legislative Counsel)]: to me. Mhmm.

[Senator Robert Norris (Vice Chair)]: I would follow with I'm not sure I have a problem with that, but I think we have to take are the victims involved in this also? And and we have to take certainly take them into consideration when we're looking with or without.

[Senator Philip Baruth (Member)]: Wouldn't the court do that? So in other words, it says It should

[Senator Robert Norris (Vice Chair)]: do that. I don't if they

[Senator Philip Baruth (Member)]: would or not.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, I

[Senator Tanya Vyhovsky (Member)]: mean, that might qualify as in the interest of justice for extending it.

[Senator Philip Baruth (Member)]: Like, the court so the court has to do a finding either that it is or isn't in the interest of justice to let it go?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think the way I read that, the finding would only be required if the court find if they find if they don't dismiss.

[Senator Philip Baruth (Member)]: But the court it would be brought to the court's attention that they either have to move or lose the case. Correct. So in in that moment, I would think if there were victims involved, the court might bring up into a hearing?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That would be the the situation in which I think it the way the language is written, the court could think about that.

[Senator Philip Baruth (Member)]: Yeah. That that they felt that was a situation where You're maybe thinking we should

[Eric Fitzpatrick (Office of Legislative Counsel)]: require them.

[Senator Robert Norris (Vice Chair)]: I was gonna say, yes. I don't have a problem with dredges as long as it took court case into consideration any victims or or damages accrued for the alleged crime. Shall shall take this into a little bit of a

[Senator Tanya Vyhovsky (Member)]: Maybe a question for the states of attorneys or the victims advocate, but I'm wondering if victims have access to whatever is available from the victims advocate regardless of where the case is in process. Right?

[Eric Fitzpatrick (Office of Legislative Counsel)]: But if crime has occurred Yep.

[Senator Tanya Vyhovsky (Member)]: Any victims get access to whatever probably could be beefed up what services and supports are available to victims, but they have access to that whether or not someone's convicted, whether or not someone like, that. Right? Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's all in the statutory list of the info that they get. Okay. But

[Senator Robert Norris (Vice Chair)]: we did hear testimony from the survivors of of those who had their lives taken that. That did not necessarily work. Yeah.

[Speaker 0]: The program didn't necessarily work as far as

[Senator Robert Norris (Vice Chair)]: the notification they're receiving or not receiving. It's my concern.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I just wanna make

[Senator Robert Norris (Vice Chair)]: sure the victims or the survivors are taken care of.

[Speaker 0]: That's that's my concern. Do do you have oh, sorry. Were you gonna respond?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. I was

[Senator Philip Baruth (Member)]: just yeah. I'm sorry.

[Senator Tanya Vyhovsky (Member)]: I'm sorry. Misdemeanors. So not to say there aren't victims of misdemeanors, but it doesn't apply to the the bigger cases like we were hearing about the other day. And I would agree with you, senator Norris, 100% that we should give more resources to our victim services department. I I think that they generally do not have what they need to be able to do the adequate work of take care of of victims of crime. So but this language, Eric, correct, is only for misdemeanors?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Correct. Okay. So I I do

[Speaker 0]: hesitate making it with prejudice. I actually prefer without prejudice in thinking about, for example, multiple instances of stalking or, say, disorderly conduct by telephone or even domestic assault that is a pattern of conduct against one individual over the course of multiple years and then leads to a kidnapping charge or leads to a murder charge or an aggravated sexual assault charge. And then getting to that point and not being able to take into consideration or not being able to bring back cases that were dismissed with prejudice. So at the moment, I'm more inclined to have it be without prejudice, but happy to be persuaded otherwise.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sounds good.

[Speaker 0]: Any other opinions on that?

[Senator Robert Norris (Vice Chair)]: No. I guess my question would be if it's dismissed with prejudice and using the chair's example that we talked another case came up down the road, could they still go back and use the alleged defense in what you're talking about as far as if it's dismissed with prejudice?

[Speaker 0]: There no. You you can't bring the charges back. I mean, depending on what evidence there is, there you might be able to get character evidence in that's related to the case and and other types of evidence as well. But it's pretty specific question, but I I you you wouldn't be able to refile the charges, but if there's evidence that exists from the past, I don't think that it would be prohibited from or it wouldn't be inadmissible if it's relevant to proving whatever the new charge may be.

[Senator Robert Norris (Vice Chair)]: So then I would lean toward without prejudice. If we because in fact, the state wants to bring some people to have to have evidence to prove beyond a reasonable doubt. So

[Eric Fitzpatrick (Office of Legislative Counsel)]: I guess I would lean

[Senator Robert Norris (Vice Chair)]: that way until it's convinced otherwise by our or what he says as they come in.

[Speaker 0]: Senator Mattos?

[Senator Tanya Vyhovsky (Member)]: I'm trying to understand if the evidence can still be used in a later thing. I'm I'm trying to understand your reasoning because initially, I thought that your reasoning was that it would be without prejudice because that evidence couldn't be used if other things happen. But now you're saying it can be, so I'm confused.

[Speaker 0]: So it depends on what the evidence is, but the question is, should the charges be refiled? So if somebody is stopped and then found and then the person is found not confident, and then several years later, case gets dismissed, but then that same person against their former victim kills them or kidnaps them, I think it's reasonable to be able to refile charges that are related to that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I guess if I might interject for a moment, I think the the point too is that stockings are a great example because that generally requires a course of conduct. So I think the point is that even though you can't refile the charges, if it's the press dismissal prejudice, you can't refile the charges based on that first incident. Wood text, stalking, or whatever. You can't refile those charges if it's prejudice. But if there's some future crime that the person's charged with in which their prior conduct may be relevant, and that's Senator Hashim is saying, the rules of evidence are very strict about when prior conduct can be used, but there are some certain situations, course of conduct, character evidence, you mentioned, you know, if if someone could prosecution were able to successfully argue that under those circumstances some prior conduct could be admitted, then, yeah, I think that the prior conduct that even though they can't charge him with it, a new crime, the conduct itself might be admissible, under one of those theories. Again, that's generally difficult to show, but, possible.

[Senator Tanya Vyhovsky (Member)]: Yeah. I guess I just if someone has escalated and is now being charged with much more serious crime, guess I don't know what the point is in charging them with a maybe 10 old previous thing that they weren't confident for if they're facing charges for something much more serious. That would carry a heavier side. I I I'm just trying to understand.

[Eric Fitzpatrick (Office of Legislative Counsel)]: They're not being charged with it though.

[Senator Tanya Vyhovsky (Member)]: No. I but if someone goes down the road to kidnap someone, they're not being charged with kidnapping. They're facing much more serious charges, much more serious consequences. What does it what is the benefit of also saying, oh, well, ten years ago, we're also gonna charge you with this thing you didn't work on a cop to stand trial for? That was not as serious. Like, I I don't understand what the value is in doing that.

[Speaker 0]: So if it's I mean if we're talking misdemeanors, it'll be two years as long as it's still within the statute of limitations. But I mean if it's instances of stalking over the course of several years that have then led to a person being kidnapped or sexually assaulted or murdered, and you want to charge the person, bring back the charges that were previously dismissed without prejudice. I'm not sure why you wouldn't want to do that. The reason that they're

[Eric Fitzpatrick (Office of Legislative Counsel)]: being

[Speaker 0]: dismissed is only because the time limit ran up and not because of a deficiency in the actual merits or the actual case itself when it was first brought.

[Senator Philip Baruth (Member)]: Just to throw this piece in, in the example we're talking about, if you have a pattern of stalking, seems to me that a judge in that instance would find that it's contrary to the interest of justice to dismiss with prejudice or might probably do so because it's clearly a level of danger beyond other misdemeanors. So I guess for me, I'm willing in the interest of not having these cases littering the system. Seems to me like a way to provide the court with a tool to get rid of cases that have already gone on too long. You know, the time is greater than the maximum sentence for the offense. So given the discretion of the court to act not

[Eric Fitzpatrick (Office of Legislative Counsel)]: to

[Senator Philip Baruth (Member)]: dismiss the charges if there's a situation like the one mentioned. I don't I don't see why we would make all of the dismissals without prejudice because I mean, in some ways, it's a philosophical thing where if if you're a prosecutor, I think you would always wanna have the ability to bring charges back. If you're worried about the health of the system and what's clogging it, as well as how to protect people, I think this language does a good job of threading that needle. But that's that's my current thinking. Willing to change if witnesses present

[Senator Robert Norris (Vice Chair)]: otherwise. This won't be clogging the system without breaking something. It's okay. Here it is. Shelf someplace. Yeah. So it's not clogging anything. So if you wanna come back and revisit it Yeah. But in the interim, it's not clogging anything. Fair enough. I guess it

[Senator Philip Baruth (Member)]: would depend on how many are brought back. And, you know, I just think if somebody's waited through the maximum sentence for the offense to then bring them up on a misdemeanor put them through a trial and then sentence them to that time again. I don't know why we're

[Senator Tanya Vyhovsky (Member)]: Yeah well and especially in the instance we're talking about they're facing something that would be a much longer sentence. Right. So I just don't understand the value add of being able to bring back a list of like, I just I don't I it doesn't make any sense to me.

[Senator Robert Norris (Vice Chair)]: Well, maybe it was $200 or so. Exactly.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, whatever way the committee goes, it'll be very easy drafting. So just keep me posted.

[Senator Philip Baruth (Member)]: I'm afraid that witnesses will ruin our opinions.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Sure. So now we're moving kind of into track two. We were just talking about you get to the forensic facility if you've been found incompetent to stand trial for an offense with a lifetime maximum, and you're not already civilly committed. Right? You're already sitting in that process. Now we're going to track to another way you get to the forensic facility, is you found not guilty by reason of insanity. And that's different than a competency proceeding because I think for a moment and support difference. In a competency proceeding, criminal charges are still pending against, we're just talking about when they might be dismissed, but assuming that doesn't happen, the criminal charges are still pending. So the criminal judge still has jurisdictional view in send you to the forensic facility in a much more direct fashion. This situation is different. Someone found not guilty by reason of insanity, that's a complete defense. So that person no longer has charges, criminal charges pending against them. So the language though provides and this is a very important constitutional piece we're gonna need to talk about for a minute. Starting on line 11, person who is charged with an offense punishable by life sentence and is found not guilty only by reason of insanity shall be committed to the frantic facility. So right, you're taking that person, committing them directly. Person who at that point would otherwise be subject to the civil commitment process. Right? Because there aren't any criminal charges pending anymore. The only reason to get that person committed somewhere would be through the civil commitment process, which you may remember from the very beginning of our discussion today requires a a burden of proof on the prosecution by clear and convincing evidence that the person being committed. So very different for a not guilty by reasonable insanity person. And as as you might expect, question has come up constitutionally. Is that consistent with due process or not? Because that's not certainly not as I think you've heard other ways to testify, not

[Speaker 0]: the

[Eric Fitzpatrick (Office of Legislative Counsel)]: way the constitutional requirements work in the civil commitment process. Supreme Court has carved this proceeding out though. In case called Jones v United States for 1983, court specifically said when a criminal defendant establishes by preponderance of the evidence that he is not guilty of a crime by reason of insanity. The constitution permits the government on the basis of the insanity judgment to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society. This holding accords with a widely held and reasonable view that insanity of quick needs constitute a special class, which should be treated differently from other candidates for commitment. Compare that in mind though, because that sort of underlies all of this. As I think you heard from your attorney general testimony last week was correct, which is that, you know, this sort of seems counterintuitive in some ways when you look at the process and see how can this be? Well, the court has held that it is permitted under the due process clause. And the reason, the rationale behind it is that in contrast to a civil commitment proceeding where the person's being cut and sent really brought into the to the court for the first time to decide whether or not the person should be essentially committed against their will involuntarily. In a criminal proceeding, the person has already been found after opioid abuse insanity. And that's a defense. The person themselves has successfully proven to the court that they did the crime, but they were mentally ill. So the court said that can really sort of satisfy due process because it's a different type of finding that has to be made with respect to this one particular class of persons. So that's sort of the rationale and it's now quite well established. This sort of proceeding where this where this person, you look at it, goes right to the forensic facility is permissible. Under the concern or

[Senator Robert Norris (Vice Chair)]: yeah. I understand the civil versus criminal, whatever, but what I didn't understand in their ruling was they based it on using the ponders of an address.

[Speaker 0]: Why is evidence a criminal?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, yeah, they've said the same thing they didn't. It's interesting. We'll get into that, but I'll I'll sort of preview it right now. That the the question of the standard of of the burden, who bears burden, and under what degree of evidence the court has looked at. They haven't clearly resolved those. They they have resolved that it's permissible. Now the case that the two main supreme court cases on this both involve cases where the defendant, the burden shifted to the defendant approved by preponderance of the evidence that they weren't dangerous and they weren't The same way the bill does. I don't know if you've noticed that. If the bill burden shifts them. So the court didn't specifically say there's been some there have been some different decisions as to what that burden should be. But generally speaking, think the the court did say that the different preponderance versus the unreasonable doubt versus current convincing, that's another reason that because of the difference with respect to these not guilty by reason of insanity that that it's okay for there to be different standards of rules. They did say that. They didn't specifically identify what was okay and what wasn't. Although I think by implication, you could at least say that it's okay to ship the bird.

[Senator Philip Baruth (Member)]: This is the plot of one flew over a cuckoo. One Flew Over a Cougar's where Murphy is in prison and then he figures out a dodge which is he'll plead insanity and he gets transferred to mental hospital but he thinks he can get out after a finite period but it's whenever they judge him to be sane and then he realizes that he's in worse situation because they'll never find him sane. So he's basically got a life sentence now where before he had five year sentence or something like that. So the part that gets me is found not guilty shall be committed to a forensic facility pursuant to this section. And then there's nothing that at that point gets them out if they're found continuing.

[Eric Fitzpatrick (Office of Legislative Counsel)]: There is now. There is now. Yes. Where is that in here? I added it. Yes. Oh, where? That is and I base I didn't just add it that right away. I didn't

[Senator Philip Baruth (Member)]: just Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Come up with it. I spent a lot of time this weekend looking at other state statutes because virtually all of them have them, Vermont doesn't, and constitutional cases that have come up with this, and there's a lot of those. And part of the reason for that, you think about why it's a there's a lot of deprivation of these process centers in there, so it makes some sense that there'll be a lot of cases. But also, as I said, particularly with respect to the burden of proof, since the Supreme Court cases aren't entirely clear, there've been a lot of lower court cases, not just in the federal courts, in a lot of different state courts under state constitutional due process provisions as well as federal laws, challenging this whole idea of shifting the burden, what should it be, preponderance, clear clear and convincing, that sort of thing. I just wanna put that out there too because I think that that whatever direction the committee moves, if you pass this, you can be certain that it will be challenged. And at least in part because it hasn't clear in Vermont yet. We there isn't such a you know, it's been in existence in other states or been opportunities for the defense attorneys and public defenders to challenge them. Hasn't happened in Vermont yet. And since it's not entirely resolved, at least the part about the burden of proof and that sort of thing, that it isn't fully established, well, isn't fully established under the federal constitution and hasn't even been raised under the Vermont constitution yet because the process doesn't exist yet. So it would almost be it would be incumbent up. It's gonna be raised. You can be sure of that. And that doesn't mean you can't do it. It just means it shouldn't be a surprise that that happened. It doesn't mean it was poorly drafted.

[Senator Philip Baruth (Member)]: Eric, are you pointing to on page five and following the person establish it by clearance and moving evidence?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. So here I'll describe it for a second before I look at the language. So here's the way it works. So they get get found not good to have reason and sanity for one of these life maximum offenses. They get sent to the forensic facility. Within that first forty days, unless the court extended their good cause, which they can do, but within that first forty days, there has to be a first hearing. Okay? At that first hearing, this is over on page five. Line 15, court shall order the person committed unless the person, this is line sixteen, two crucial highlighted pieces because this is your decision points. Unless the person establishes by clear and convincing evidence, so a, the burden is shifted to the person and b, it's by clear and convincing evidence. Quick background, as I said, I looked at a lot of these statutes, I didn't look at all 49 of them assuming they I don't I don't know that, there isn't quite enough time to do that, but pretty much all the statutes I looked at did shift the burden to the person. There's a couple of exceptions, Virginia and New York was a real hard sort of decipher, but I think at least part of it, the states still had some of the burden. But the others, they all shifted to the person to prove. Also though, interestingly, by clear and convincing evidence, again, I didn't look at all of them, but other than the federal statute, which is clear and convincing, all the statements I looked at were preponderance. There's a lower threshold for the person to have to prove in order to get out. See what I mean? Also It just seems like Yeah. These are policy points for you.

[Senator Philip Baruth (Member)]: Seems like a difficult thing to prove by clear and convincing evidence. But for you yourself or your attorney to prove by clear and convincing evidence that you're no longer suffering from a mental disease because there's just so much ambiguity involved but anyway my question my further question would be so this is a hearing. It puts the burden on the person to establish that they're not no longer insane. Can they just be held forever? Yep. Or is there's no

[Eric Fitzpatrick (Office of Legislative Counsel)]: clock that goes? Well, there is so then what happens after that is that the person so there's been two other reassess reevaluations of the person that could that will take place for sure for one of them, assuming the person files. But the way it works is, and this is also based on other states, and this goes over on to page six and seven, which is that the evaluation of the person's sanity can take place again under two different circumstances. One is commissioner of corrections based on the certification from their clinical services director, the person is no longer suffering from it. The clinical services director after treatment, which I also had, you'll see remember there wasn't any treatment piece before but that's in there now based on the Washington statute. The clinical services director says to the commissioner of corrections, this person looks like they're no longer criminally insane, then the commissioner has to request the reevaluation by the court. So that's one circumstance. Mhmm. Circumstance two is, the person can request it themselves every year. So that's page seven lines five to 10. So the person can continue to request it anyway. They wanna be reevaluated. And that also that's based on So think

[Senator Philip Baruth (Member)]: it was Hawaii. In effect, they have a life sentence with possibility of COVID.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, in other words, they're not

[Senator Philip Baruth (Member)]: gonna get out unless they convince a board or

[Eric Fitzpatrick (Office of Legislative Counsel)]: a Of course. Well, first,

[Senator Philip Baruth (Member)]: the clinical services director in that one instance. Right. And and then convince the court. Yeah. And maybe there's there's no way around it, but it it does seem like once a person is in there, they're in a a gray area that clear and convincing evidence seems like it would be a high bar to hit there. But, anyway

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, as I say, that is that is a constitutionally permissible. That doesn't mean it's required. So some you guys can make that decision. I think just one last sorry to interrupt you. Just because it's a fun little fun. My board of geeks are coming out. But so the court specific federal court in California said on the basis of the other main supreme court case on this is called Fusch and Louis, Louisiana 1992. And this federal court said specifically that the court's analysis and not analysis, but their the decision about what is the right standard of review and who the burden should be on is admittedly in the light of those two Supreme Court cases, admittedly subject to different interpretations and lower courts analyzing it have reached different results. So that's just so you know that you have some decision ability there as to what you want that standard to be and who you think should have it.

[Senator Philip Baruth (Member)]: Senator Mattos.

[Senator Tanya Vyhovsky (Member)]: So I it's sort of a similar area of questions. And so the person has to convince whomever needs to be convinced that they're no longer insane or they're no longer a danger to themselves or others because presumably someone could be not dangerous and still suffering from a mental health or disease or defect.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. I was sort of using it as shorthand and perhaps I shouldn't have been. No. They have to convince everyone, the court, that they're no longer suffering from a mental illness. That would create a substantial risk of bodily injury to another person. Okay. So it's both. Okay. And that yeah.

[Senator Robert Norris (Vice Chair)]: So it's

[Senator Tanya Vyhovsky (Member)]: both. Okay. Because I I had concerns if it was just that they were no longer suffering with a mental disease or defect or however that horrible language is is in the law. Mhmm. Right. Because there are lots of people that struggle with mental health challenges that in fact, most people that struggle with mental health challenges are not dangerous. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And and that actually is the that second supreme court case I mentioned, Boucher v. Louisiana, was exactly that with the issue. Could someone be held on the basis only of dangerousness without requiring mental illness? The court said, no. To hold somebody, you have to show both that the mental illness and that they're dangerous to another person. That's the only consequence.

[Senator Tanya Vyhovsky (Member)]: So You can't hold someone just because they have a mental health issue or just because they're dangerous. Exactly. Okay.

[Senator Robert Norris (Vice Chair)]: It's gotta be both. Okay.

[Senator Tanya Vyhovsky (Member)]: The shorthand got all my hassle.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sorry about that.

[Senator Tanya Vyhovsky (Member)]: No worries. Yeah. Yeah.

[Speaker 0]: That was that was a point I was Not sure about the dangers. Also concerned about as well. And, I mean, the way I'm reading the case, just the the orders and this bill is that as you said, if it's if there's a substantial risk of injury to somebody else and it's a result of the mental defects as it's being described, but just having that illness isn't what keeps you Exactly. Exactly. No.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Has to be both for sure. And the way in that both end it, they're connected. It's the it's the mental illness that causes dangerousness. Yeah.

[Speaker 0]: Oh, and it's actually the other piece. I couldn't find it. I think you had mentioned that there's a year timeline that a person is permitted to move once a year. Yeah. Page seven. I didn't see that on we're we're on page seven.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Senator Norris maybe right where the it's interesting. Oh, here it is. Well, on mine, it could be different draft here. I'm on page eight. Thank you. Line five through seven. And this is based on you could do whatever time period you wanted. Hawaii had a year, but I think that Wyoming actually has a funny one where, like, if you do it more frequently than every six months, then the court can make a summary finding. So it's just sort of a sort of middle ground.

[Speaker 0]: I I didn't mean to jump too far ahead. I just

[Eric Fitzpatrick (Office of Legislative Counsel)]: wanted know where that was. No. That's it. At point point. That's part of the whole process. Did you have a question?

[Senator Tanya Vyhovsky (Member)]: Yeah. And it's sort of around the constitutionality of limiting how often someone can say, hey. I should be released.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think it's pretty common. Okay. The that's I'll see if there's been any cases on that at this point, but I think in this context because the court has been so clear about the different standards that apply and the not guilty by reason of insanity situation that they've also talked about other timelines, not specifically that, but other timelines being different. I know I saw a couple of cases on that, like being able to recommit somebody on a different standard in a on a shorter timeline. So so I don't know, and we'll look to see if there's any specific cases, but I think kind of their general approach of saying this is a very narrow carve out and specific one. Mhmm. That that would at least arguably be

[Senator Tanya Vyhovsky (Member)]: Yeah. And I understand, you know, the constitutionality and and rationale behind, you know, saying someone can only petition for parole. That's you know? But this is clearly not to be a punishment. It is not to be a so I don't know. I'm I'm glad to know that I mean, I

[Eric Fitzpatrick (Office of Legislative Counsel)]: don't know that I'm glad to

[Senator Tanya Vyhovsky (Member)]: know this, but I I just I've got questions there around because it seems to me we're sort of aligning it with the limitations on asking for parole, and that to me is seems to be kind of yet another indicator that we're treating it like jail. And so that just raises concern. Sure.

[Senator Robert Norris (Vice Chair)]: So just so I'm clear on this, I wanna back up a little bit. Yeah. We did a two prong test to make sure that someone was suffering from a mental

[Eric Fitzpatrick (Office of Legislative Counsel)]: illness Yeah.

[Senator Robert Norris (Vice Chair)]: And dangerous. We had to prove both of those. So if in fact you can show that they no longer suffer from a mental illness, but they're still dangerous, they can be released. Correct.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Wow. That's what happened on the solution. That's just yes.

[Senator Robert Norris (Vice Chair)]: Okay. As long as I'm understanding that. Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That was the exact case. Isn't it like that with veil too?

[Senator Philip Baruth (Member)]: That someone it can't be or am I

[Eric Fitzpatrick (Office of Legislative Counsel)]: trending Bail of dangerousness is That that you can be held. Right. Right. Yeah. But I think that Well, bail speak up just the employee. Not just. So life actually a life Right. My

[Senator Tanya Vyhovsky (Member)]: understanding of bail is that you can hold without if someone is dangerous, and no set of circumstances can mitigate that dangerousness. You actually may not use bail to mitigate dangerousness. So I can't say, oh, you're dangerous, and you get a million dollars bail, and you did the exact same thing, but you're not dangerous, and you get a $10 bail. Bail can only be used to mitigate risk of flight. Is I I we spent a lot we've spent so much time on bail in this

[Eric Fitzpatrick (Office of Legislative Counsel)]: committee. Yes. I think that sums it up nicely.

[Senator Tanya Vyhovsky (Member)]: Okay. Mhmm. Now in an instance like senator Norris is no. Like, what do you do? What what do you do in the instance where the court deems, nope. You are no longer insane. You're still dangerous. Like, is there anything you can do?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You could sit with members.

[Senator Tanya Vyhovsky (Member)]: But wouldn't that also rely on them being mentally ill?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. But you might also be able to show developmental disability. You know, the civil commitment process is different And there's a number of statute right in front of me. But there's there's a list of ways in which statutorily you can be committed to show both likeliness of harm to yourself or others. And there's some criteria in there. So that may be a different factors that will go into a decision in the civil criminal justice.

[Senator Tanya Vyhovsky (Member)]: But I mean, I guess it happens through the criminal justice system too where someone is sentenced to say ten years. They've served their ten years. They're still dangerous, and they have to be released.

[Senator Philip Baruth (Member)]: True. Yeah.

[Speaker 0]: Can we From what going on?

[Senator Tanya Vyhovsky (Member)]: I am not.

[Speaker 0]: Can we keep going with the walk Yes. Through So

[Eric Fitzpatrick (Office of Legislative Counsel)]: we were so now we're we sort of covered pieces of this already, but we kinda have the big picture of what happens. The person's found not guilty by reason of insanity, they're sent to the forensic facility, there has to be this hearing within the first forty days. At the hearing, the person bears the burden of proof by clear and convincing evidence, they have to establish that they're no longer suffering from mental disease or defect, They would create a substantial risk of body injury to another. I'm on line 19, page five. Just to point to remind the community there that remember the last draft had included property damage. So that's being struck in every instance of it. So it has to show the person as a risk of harm to another person, not just property damage. Turn it over on page six, the person does establish that by clearing evidence that they're not mentally ill or dangerous, then the court releases the person, that's four and five, right? So the third thing will get up. They establish that, they get released. If they don't, then they

[Senator Philip Baruth (Member)]: get committed to the facility. I'm just reading this. So it now says, its court finds that the person has established by clear and convincing evidence that the person is no longer suffering from mental disease and upon would create a substantial risk of bothering to another person. Quote, challenge or in order releasing the person. That's correct. That's not missing a knot there on line three? I think so because it

[Eric Fitzpatrick (Office of Legislative Counsel)]: goes back to line two. If evidence the person is no longer suffering for a mental disease or defect, that would create a

[Senator Philip Baruth (Member)]: risk of bodily injury. I see. So

[Eric Fitzpatrick (Office of Legislative Counsel)]: they're no longer suffering from a mental illness that would be dangerous. Kind of in short of what Okay. And then the court release of the person. I remember if they don't show that, then they're at the forensic facility and and then subsection c goes on to say, generally speaking, this is your point center group, placement is generally for an indeterminate period provided that at this point well, first, the trigger for the release is the next sentence they have to establish by querying convincing evidence that the again, same language, no longer suffering, etcetera. How do they establish that? That's gonna be either because the commissioner of corrections has to file a petition, that's the very bottom of page six over on page seven. Commissioner of corrections has to go to court if the director of clinical services says we think this person isn't suffering anymore. Commissioner has to go to court during the petition board or the person can do

[Senator Philip Baruth (Member)]: it every year. We talked about that piece already. On page six, line 11.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep. Should we be eliminating serious damage? Oh, thank you. Nice catch. Thank you. New language subsection D, page six. This is the issue the committee was concerned about. I think senator Vyhovsky was kinda getting at it as well, is, know, is it a treatment facility supposed to be not a correctional facility. Right? But the previous draft didn't have any language about the treatment that the person was supposed to get while they're inside. So this language is from the Washington statute, makes clear that the commissioner shall provide adequate care and individualized treatment at the facility to persons who are already committed there. In order that the commissioner may adequately determine the nature of the person's condition needs, all persons shall be properly examined in order to provide a proper evaluation, diagnosis, and treatment. So just some general language about making sure that the treatment is happening here. As I said, tracked on tracked it on language from a different state. So And Washington

[Senator Tanya Vyhovsky (Member)]: locates their non jail treatment facility in their jail?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. No. In fact, I didn't find again, I didn't look at all 50 states, but all the ones I looked at had a separate psychiatric facility. Disorder.

[Senator Tanya Vyhovsky (Member)]: I I still have pretty significant concerns with DOC being involved in something we're claiming is not a jail, thanks for that language. It's important that you have there. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Let's see. So we've gone through on page seven, I've gone through all that. This is all this as we just said that the corrections commissioner has to file and the person can file every year. And then bottom page seven over on to page eight in that it needs subsequent evaluations if they get if they take place against the same standard, the court must order relief if they find that the person is no longer mentally ill and dangerous over on to page eight. Sorry. Yeah. If the court finds that the person is still dangerous at Menue Hill, then they deny their their petition for release, and they order them commission for treatment. And then we'll see sorry. Committed for treatment. And then you see lines five to seven to point that if they deny the petition, then they can't bring another one for another year. So that's a successive petitions that sometimes called sometimes some places of the law. Subsection E isn't changed too much, but this is just the idea that if the person is released, then the Commissioner of Corrections has to monitor their compliance conditions of release, and they may return the person to the facility if they're non compliant, at which case they'd have another hearing to determine whether they're non compliant and dangerous. Over onto page nine, we look at this at the very beginning. This is the definition of forensic facility. Again, reordered to stress the secure treatment. It's in subdivision A. Similar language in subsection B on page nine says that the definition of subsection a, the requirement of subsection b, the commission of corrections shall establish and operate a locked secure forensic facility for the, and again that's why I've added the treatment language again, for the secure evaluation, treatment, and care of persons down on the line 18 who have been transferred pursuant to those cross references are the two competency and not good recoveries of insanity tracks that we just talked about. They're gonna be transferred to that facility one way or the other, and that's just saying for those people, corrections has to establish the facility for their evaluation treatment care.

[Speaker 0]: Eric, if I can add real quick and Yeah. This a little bit here, committee's opinion on this. For line 14, where it says the commissioner of corrections shall establish and operate, so on and so forth. Inserting in consultation with the Department of Mental Health. So it would read the Commissioner of Corrections in consultation with the Department of Mental Health shall establish and operate a secure forensic facility. She'll establish and operate a locked and secure forensic facility. Think that is geared more towards the rehabilitative aspect of this that we have to have. And so just a note for future markup unless there's different thoughts on Sure. Sure.

[Senator Tanya Vyhovsky (Member)]: I just have a question. Are you suggesting just here or in every place you were asking the Department of Corrections or the Commissioner of Corrections to do this work? Because I I I mean, it also raises question, like, why would it be the Commissioner of Corrections that's arguing that this person is now sane and not the Department of Mental Health? Why would it be? So I'm wondering if that I mean, it doesn't I think it's better, but it still doesn't solve the concern I have about why corrections should be involved at all if it's not jailed. But I do think that is a good point that the Department of Mental Health should be involved.

[Speaker 0]: I think the so any words, since we're under the definition for forensic facility, think that, I mean, they're both departments under the agency of human services. So, I mean, should it just be the agency of human services provides for the secure evaluation treatment and so on? Or I mean, what what what will be I'm just trying to think of what the impact will be if we're saying that the commissioner of corrections will consult with the Department of Mental Health versus the Department of Mental Health shall consult the commissioner of corrections and so on. I mean, if we're talking about a locked and secure facility that is under the umbrella of the Department of Corrections, We're talking about mental health, obviously, under the Department of Mental Health.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And

[Speaker 0]: so perhaps is there a way to word this generally throughout the bill so that it's clear that this is more of a partnership between DOC and DMH. That way we're getting at both the secure facility aspect of it as well as the mental health recovery aspect of it.

[Eric Fitzpatrick (Office of Legislative Counsel)]: We'd have to look at the bill overall. I think in some places where, for example, you're saying that the commissioner of corrections has to file petition for release if the clinical services director has said to them, mean, maybe you could add in consultation with BMH, but other other places that might be might be a little clunky. So Would that

[Speaker 0]: clinical services director be a member of DMH?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't think it's written that way. But again, you could ask I think they're both coming in. So maybe see what they think as far as the best way to structure that.

[Senator Tanya Vyhovsky (Member)]: I recall hearing from DOC that they would run this through WellPath so the clinical director wouldn't be a state employee and be a for profit

[Eric Fitzpatrick (Office of Legislative Counsel)]: contracted. Got it. Okay. Did you raise any? No.

[Speaker 0]: Thank you. Okay. Well, we'll put a pin in that as a decision point Yep. For later. I have a question.

[Senator Philip Baruth (Member)]: Senator Baruth. Page 10. This is the public records and confidentiality. It says they'll be exempt from public records, etc. Shall be kept confidential except that records shall be made available to the parties in the underlying criminal case upon request. So that would be the state's attorney others in the underlying case. Could a later prosecutor who's looking at something with this individual, could they look at these records? Because it's it seems like it's limited to the parties in the underlying criminal case rather than cases that might come along later involving that place.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's the way I would agree with it. Yeah.

[Senator Philip Baruth (Member)]: I'm just wondering if that's too restrictive. In other words, I remember when we were doing the ceiling, the state's attorneys were very protective of their ability to go back and look at previous cases. It seems like here we're explicitly forbidding that, which seems like it could be an issue since you're dealing with the tiny percentage of people who have been judged a danger to society. So I just put that out there for maybe the the witnesses to respond to. Greg? Yep.

[Senator Tanya Vyhovsky (Member)]: Senator Boses? I have the opposite concern, and I'm curious how this squares with HIPAA that you could ever share someone's treatment information with their their protected medical information on a case that has been dismissed. Or not dismissed, but yeah, it has. It's been dismissed. Like, I am really and I hear you, but HIPAA protects medical information. If this is not a jail and this is treatment, that is all protected medical information.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have a pretty expansive view of the HIPAA state law exception. So I think it hasn't been has talked sometimes in the legislature but my reading of HIPAA is that I'm not commenting on the policy. You got whatever policy you think it should be, but HIPAA has a specific exemption for required disclosures by state law. So if the state law requires that certain information be disclosed, in my view, it trumps HIPAA. So I have a look at that quite in detail and I've got a couple of cases that say that. So again, say a lot of them say that very much. It's a policy matter. If you wanted to say that, then then you can't require, not permit, but if you require disclosure of records of statement that are otherwise provoked, then HIPAA would stand in the line. I can email it with the legal district. Didn't ask that to be awful.

[Senator Tanya Vyhovsky (Member)]: I believe you. It gives me a lot of concern. Besides being as I hear that, I'm just we could just decide. You have to share whatever like, we don't like this particular group of people. You have to share their medical information. Like, that feels horrifying to me, but I I do believe you.

[Senator Robert Norris (Vice Chair)]: But it's

[Eric Fitzpatrick (Office of Legislative Counsel)]: been an ongoing issue for a number of years.

[Senator Tanya Vyhovsky (Member)]: Okay. And is it fairly settled or I don't know. Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't think that it's always settled from the perspective of the executive agencies. But from my perspective as an attorney for the legislative branch, I think it's pretty clear if the legislature has that. Okay.

[Speaker 0]: I think one question that could be discussed between witnesses hopefully is, you know, how this evidence would be used in a hearing to determine whether or not somebody can be released after this because what I've seen is situations where where the state doesn't have access to information that may change their opinion as to whether or not somebody should continue being held. And and then I guess it lands to the defense attorney as to what amounts of input what what evidence they'll admit in order to try to get their client released. But then the state doesn't have access to it at the same time unless it gets admitted. So it's a complicated rules of evidence piece that is a bit beyond me but it's I've seen it get very complicated is all I'm trying to say.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. The fact that they might be not be confidential doesn't necessarily mean that they would be admitted. Right. That's another complicated proof that would have

[Senator Philip Baruth (Member)]: to be jumped to the market.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's relevant and not judicial. Yeah. But that's the no changes to the other other language you've seen before. It's not not hasn't been changed. The the fact that the the department has rulemaking authority over this facility and it's required to establish rules to cover the operation of the facility. And if there's an exception to the rules of criminal procedure, they don't, sorry, the rules of evidence that provides this. They don't apply in proceedings concerning over page 11, line seven, and eight competency restoration proceedings or granting revoking conditional release that type of proceedings we just talked about that close the evidence on file and those proceedings. A wider degree of evidence could be revoked in.

[Senator Philip Baruth (Member)]: Senator Mattos?

[Senator Christopher Mattos (Clerk)]: Yeah, just back on page eight line 14 a grammatical one. Yep. I have a commissioners shall notify the court where the where the person was. Oh, yes. Nice catch.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you. Look at that. You got it. Yeah. Hi, Yeah. Ty. Thank you. Feel good about that.

[Speaker 0]: Alright. So the decision points that I have listed so far, should this be attached to a jail? Yes or no? And then should this be under the purview of DOC or DMH or the agency of human human services? Or should we just say the DOC in consultation with DMH or vice versa? That's the next decision we're gonna have. And then the third is the clear and convincing burden the clear and convincing threshold and then who the burden rests upon. And then I guess there's also lingering questions regarding when 7553 hearing would get held, which is a hold without bail hearing.

[Senator Philip Baruth (Member)]: And also the question about who can access the records Yeah. Going forward.

[Speaker 0]: So I don't know that we necessarily made any substantial markup requests for today. But I think so I know we have well, actually, committee, are there any other decision points that are left?

[Senator Philip Baruth (Member)]: Did you mention with prejudice, without prejudice?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Senator Hashim, could you ask me a favor? I got picked up with your lock with item number three and I missed one and two. Sorry.

[Speaker 0]: No problem. So the first question was whether or not we should specify in the language that this will not be attached to a DOC facility.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Yeah. Yeah.

[Speaker 0]: And then the next piece was the wording around whether or or not this is under the purview of the Department of Corrections or the Department of Mental Health, or do we say both? Yep. Or do we say agency of human services? And then the next was the clear and convincing evidence threshold and then the burden. Yeah. That one. So Yeah. And then after that, who can access records, and then dismissing misdemeanors with or without prejudice. Mhmm. Then somewhere we'll have to add clarifying language about hold without fail here in the circle. Great.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Great. Thank you.

[Speaker 0]: Eric, would you be able to come in tomorrow at 09:30 so we can continue working on this? Yeah. Sure. Yep. So we'll do 09:30 tomorrow, mark up. Hopefully, we will have reached decisions on these. Actually, let me let me back up a bit. We're hearing from a number of witnesses on Thursday. And I think well, I'm I'm assuming their testimony will determine or affect our decisions on those decision points. So perhaps we shouldn't do markup tomorrow morning.

[Senator Philip Baruth (Member)]: And trying to think here.

[Speaker 0]: We do have Jen Coleman coming in tomorrow. Okay. Well, I just have to do some agenda work. Okay. So I I don't think you have to come in tomorrow morning. I I don't think that would make sense. I think we should hold that until after all the witnesses we're hearing from on Thursday. Okay? And

[Eric Fitzpatrick (Office of Legislative Counsel)]: yeah. Okay. Well, I'm flexible in the morning, so if it turns out that you're making some adjustments, just let me know. I can

[Speaker 0]: Yeah. It'll work for me. Yeah. Yeah. Maybe we'll hear something. We'll maybe we'll get some emails or something after this. I think we just have this hearing, and that'll provide some help for us. But we'll let you know in the morning.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Sounds good. Okay.

[Speaker 0]: Great. Thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. We can we can adjourn.