Vermont Legislature SmartTranscripts:

[Speaker 0]: We're live. Alright. We're back

[Senator Nader Hashim (Chair)]: in senate judiciary, February 27. With s one ninety three, we have a new version that incorporates some of the changes that we discussed yesterday. So pretty close to a final version. And we have Derek from the Legion Council here to talk us through that.

[Speaker 0]: Thank you, and good morning again, everybody. Eric Fitzpatrick with the office of legislative council here to walk the committee through revised amendment to s one ninety three, which is an act relating to establishing a forensic facility for certain criminal justice involved persons. This is version 4.1. Just double check. Is that the version everyone has at the moment? Excellent. Good. So based on some of the testimony yesterday and the committee discussion, there are some additional changes highlighted to version 4.1, which are highlighted in yellow. Sorry. Oh, great.

[Senator Nader Hashim (Chair)]: Thanks so much. Okay.

[Speaker 0]: So although no changes on page one, just a quick review because the the the first section we're talking about now is the competency restoration section. So remember that a person can get to the forensic facility either because of having been found incompetent to stand trial or not guilty by reason of insanity. This first section to deal with the universe of people who are found incompetent. So there's four criteria that would lead to a person being committed to the forensic facility, and that is on page one. These are unchanged, but just to refresh your recollection because it leads into the subsequent part that we'll talk about. A person's charged with an offense punishable by a life sentence and either it's a subdivision too. They're either held without bail, or if they're not held without bail, then their release would create a substantial risk of bodily injury to another person. So, again, it's in terms of the universe of people going to the forensic facility, it's not necessarily everybody who's not in competent. Because if you're not in competent and you're not held without bail, then you don't go unless there there's a finding that you're at substantial risk. So additionally, subdivision three, the person's not currently receiving treatment under a hospitalization order, either in the civil commitment process or the criminal commitment process. So this is only for folks who aren't already getting treatment. And subdivision four, I just mentioned they've been down on a competent standpoint. Okay, so look again at the bottom of page one over on page two to help us understand how this process Upon admission, so somebody qualifies under one of these criteria, they go to the forensic facility. The person is evaluated for competency to stand trial not less than the shorter of 800, now over on page two, every six months or if the forensic facility's clinical services director finds that the person is likely competent to stand down. Alright. So think about that for a second. So that somebody's in the facility. Right? If they go there, and they're gonna get reevaluated either every six months or it could be sooner than that if the clinical services director notices. Because remember, this person's getting ongoing services, ongoing common state restoration services. The director says, I think this person's restored, then they get a hearing for that evaluation, sorry, based on that as well. So either way, they would get reevaluated either every six months or if it looks like they're they have regained competency. Okay. So you've got that status or that procedure as to what happened. So then we're transitioning to the an issue that you see where the highlighting gets on page two.

[Senator Tanya Vyhovsky (Member)]: And this is

[Speaker 0]: the issue of the universe of people who cannot be restored. Right? What happens in that remember the committee had a lot of discussion about this yesterday. What about somebody and you'll see line six, at the request of a party, the court may order that a second or subsequent evaluation, remember, every six months. Right? At the least, they're gonna get evaluated every six months. So every six months, this evaluation could include an opinion on whether the person's competency can be restored. That's still highlighted language line seven. So what could happen then if there's this quite evaluation based on competency restoration? If the court finds that the person may be found likely competent to stay in trial, then the court notifies the state's attorney. That makes sense. Right? If I know, actually, the person may be competent, so it'll the state's attorney know. But now we start in the high waving language. If the court finds by clearing convincing evidence that the person cannot be restored to competency, the court shall order continued treatment of the person taking into account the least restrictive conditions applicable unless subdivision b applies. Now this is the important process that the committee was talking about, which is well, if someone has been found not restorable to competency and they're not a danger to anybody, shouldn't that person be released? I think that's where the committee was going. So that's the process that's set up in subdivision b. So two things could happen if they find that the person's competency can't be restored. The one I just mentioned, they could or continue commitment, that's line 12, taking into account the restrictive conditions unless subdivision b applies. And what does subdivision b turned out? If the court finds that the release of the person who cannot be restored to competency would not create the substantial risk of bodily injury to another person, In that case, the court shall order the release of the person pursuant to these conditions of release. Now this language didn't just come from nowhere. A member of the committee may recall this. That same process is in the not guilty by reason of insanity section. So I just cribbed some of that language and paralleled it here. So it provides for a release of the person if that wouldn't create a substantial risk of bodily harm to somebody else. And they would be under this possibly prescribed regimen of medical psychiatric, psychological care treatment that's been determined appropriate by the forensic facilities clinical services director, and they have to comply with that. That's over on page three. They have to they're supposed to comply with these conditions while they're out. And then it's gonna skip ahead a second. Just go to the bottom of page three. And this because this actually works well with this other concept we were talking about yesterday, which is what about the commissioner's authority? I think Karen talked about it as well to immediately bring someone back in under certain circumstances. So the idea, and again, this is parallels the NGRI situation. Look at the bottom of page three. The commissioner shall and here's the highlighted language, shall actively monitor compliance with orders issued pursuant to to beyond, and that's the one we just talked about. That's the order to go out into the you can be released in the community. You have these conditions. The commissioner monitors compliance, and then they can order return to facility. That's what we're on page four. If the person then has created substantial risk of clotting injury. So those

[Senator Tanya Vyhovsky (Member)]: What does actively monitor mean? Does that have some sort of legal

[Speaker 0]: does that mean they check-in with them once a week?

[Senator Tanya Vyhovsky (Member)]: Does that mean that they're watching them on a camera? What does that mean?

[Speaker 0]: Yep. It doesn't have any other than plain language bank plain language meaning. It doesn't have any any particular like, a legal term of art. It isn't that that's just the language that was used in the original DMH proposal about the NGRI population. So it's not any more specific than that or at least not any more defined. But so that's the idea of the process. So you've got a situation where the person could be released if they're not not could be a harm to somebody else if they have been found to have a circumstance where the competency could not be restored. But you also have a process for bringing them back into the facility if it turns out they are dangerous. That's the the idea of those two highlighted pieces on pages two through four. Should we move on to that section? Or

[Senator Nader Hashim (Chair)]: Quick question. I don't know if it's gonna be a quick question. But page four, line three and four, the commissioner has reason to believe that the person is, again, incompetent. Any thoughts on how the commissioner would make that determination?

[Speaker 0]: I would think that that it's really just because this commissioner supposedly at the center of a house care is pointing us to engaging in active active monitoring of compliance with the orders. So I don't have any specifics about how that would happen, but I think presumably they're actively monitoring. That would mean that, hopefully, there will be some information loop. So they would be and they're supposed to have, as part of their release plan, explicit condition of release, comply with prescribed regimen of medical, psychiatric, psychological care, or treat together with any other conditions appropriate to protect recovery. So hopefully that creates a feedback group where they find out. I

[Senator Tanya Vyhovsky (Member)]: can certainly understand the commissioner's ability to monitor compliance. But I wonder what expertise the commissioner of corrections has in incompetence. Because they may be actively monitoring. And sure, they know, like, pardon me, taking your meds, are you not taking your meds, are you? But incompetence, I mean, that's determined by a clinician and a court. So what expertise does the Commissioner of Corrections have to determine if the person's incompetent or not?

[Senator Nader Hashim (Chair)]: I'm wondering if it makes more sense to have the clinical services director provide that feedback to the commissioner or rather, the clinical services director being the one who determines or has reason to believe that the person isn't complying and incompetence again. And then the commissioner would have would be the one who has the authority to issue that order to bring the person back, but with the consultation of the clinical services director who presumably does have the expertise to make such a determination.

[Speaker 0]: So maybe something like page four might be the commission if the commissioner, either in consultation with the clinical services director or on the basis of the information provided by something like that.

[Senator Philip Baruth (Member)]: Isn't that already implied, though, when you say a commissioner or a secretary has the power to do this? We assume that they're acting on the advice of all of their subordinates who are on a daily. I saw the DMV commissioner suspensions

[Speaker 0]: and all that. So

[Senator Philip Baruth (Member)]: I I don't read it that the commissioner, him or herself, has to be actively monitoring and then coming forward and saying, I believe this, but that the commissioner commissioner's people, one of them being the clinical services director, might, you know, then ask the commissioner to use their authority to do this. Yeah. Does that make sense? And then we have Karen Barber on the Zoom. Karen, I don't know if you have any thoughts on this, if you wanted to chime in with this conversation?

[Karen Barber (General Counsel, Department of Mental Health)]: Sure. For the record, Karen Barber, General Counsel, Department of Mental Health. Yes. Senator Baruth is absolutely correct. When it says commissioner, it's the commissioner's people. So it's whoever is working under the commissioner that's working on those things. So in this case, I'm sure it would be clinical folks that are doing it. But ultimately, because the commissioner is responsible for the department, they would be the one you know, whose name is on it. But, of course, staff are heavily involved in everything, including clinical staff.

[Senator Nader Hashim (Chair)]: Excellent. Thank you. We're good to keep going with the

[Speaker 0]: walk through of questions.

[Senator Nader Hashim (Chair)]: Other questions on the same.

[Senator Tanya Vyhovsky (Member)]: The

[Speaker 0]: next couple of changes are on page four. See the first one, line seven, is just some language cleanup that Senator Norris had pointed out the last time. There's some language appearing twice. Lines nine and ten, I should have actually highlighted the state's attorney phrase on line nine. Because remember, this is the issue of the burden shifting. Who has the burden Mhmm. And and that and what is the burden gonna be? And in this situation although no. I'm sorry. Actually, in this case, it was the state's attorney all along. So that that was not a change. So it's good that that wasn't highlighted. But in this case, you may recall the committee's decision generally was that the way you wanted to move forward with the issue of who is gonna have the burden of demonstrating that the person should be in the facility or should be brought back to the facility depending on the circumstance. It was gonna be with the state, and the state would bear the burden by clear and convincing evidence. So you'll see in several different locations that change being made, and this is one of them. So in this case, it's specifically to do with the readmission. In other words, it's somebody who has been found competent, released to the community, and then the commissioner and the people in the commissioner's department say, recently, the person is incompetent in the immediate readmission to the facility if the person's continued release would create a substantial risk of bodily injury. In that situation, the state's attorney has the verge by clear and convincing evidence to prove that the person is not competent. So to get them back into the facility, the essay has to show by clear and convincing evidence that they're not competent anymore. So that's the change there. We'll see more of that later on in the now, if you'll give our reasonable insanity context. Over on to page five, this is the issue of if I remember, this is section two now. This is the dismissal of some cases in which a person has been found incompetent to stay on trial, but the case has been inactive for a period of time. And in that case, the language requires dismissal. The question had been, should that dismissal be with or without prejudice? So I think the committee went in the direction of without prejudice. That's the change there. So then now we're on to page seven, and this is the hearing. So this is the initial hearing for a forensic facility admission for somebody who's been found not guilty by reason of insanity. So in that situation, looking at page seven again, remember the court has to have this hearing within forty days after the person is sent to the facility after being found in GRI. The court has a hearing, and under the previous version, it was the person's burden. The person's been sent to the facility to establish by clear and convincing evidence that they are no longer suffering from a qualifying condition that would create a substantial risk of bodily injury to somebody else. So the committee went in the direction of deciding that that burden should be the same, clear and convincing evidence, but it should be on the state since the person is being committed. So you see where you see person on line two, that's changed the state's attorney. Grammatically, you had to sort of restructure the sentence a little bit because the state's attorney wouldn't be showing that the person is no longer suffering. They only have to show that the person is suffering. So and that's the same change in line six and seven, just referring to the finding that the court has to make. Again, lines thirteen and fourteen, same thing. Person isn't released until the court finds by clearing existing evidence that they're no longer in this qualifying petition situation. Again, no changes to the to the process for that allows the person to file a a petition. Again, it's sort of similar to the incompetency situation where the person can in this case, it's every year, can file a petition every year. That's line 13 page nine. Once per year, the person can file a petition to have their not guilty by reason of insanity or or their status with a qualifying condition, danger to another person, reevaluated. But it could be sooner than that if the clinical services director decides that based on treatment that the person has actually changed their status so they can file sooner than a year. Think that comes up that

[Senator Nader Hashim (Chair)]: the if if the individual's attorney comes across new information wants to petition the court, are they able to? Or does it have to come just from the clinical services director?

[Speaker 0]: Well, you mean on the annual, the one to your thing?

[Senator Nader Hashim (Chair)]: Yes.

[Speaker 0]: Yeah, definitely the attorney,

[Senator Nader Hashim (Chair)]: for sure. Okay.

[Speaker 0]: When you said to the person, it's kind of like the commissioner referenced earlier, that it's assuming that they're going to be it's going to be counseled on behalf of the person. Okay.

[Senator Nader Hashim (Chair)]: Yeah. I just wanted to make sure that it's not a situation where somebody who's not guilty by reasons of insanity who is committed, that it's not up to that individual or I'm sorry, it's not up to the clinical services director to say, yeah, you can petition the court if you want to. But rather, the attorney for that individual can petition the court.

[Speaker 0]: Yeah, it is. And it's both, not either or. Okay. So yeah. Right. So that's that process. The qualifying condition over on page 10, forensic facility qualifying condition definitions remain the same in this draft. And I guess that was it. I thought maybe there was one more change, but there was not. Alright. We ended up leaving the language. The the discussion had been about the page 12 lines five to seven. The commission of corrections consultation with the commissioner of mental health. I think the committee ultimately just decided to leave that language as is. Say that they would go

[Senator Tanya Vyhovsky (Member)]: to the facility if they don't have a condition.

[Speaker 0]: What line are you on?

[Senator Tanya Vyhovsky (Member)]: Sorry. It's page seven, lines one two, out of that little section.

[Speaker 0]: Oh, yes. Thank you. Nice catch. Unless you'd be if. I think I'm reading it right.

[Senator Nader Hashim (Chair)]: Oh, yes.

[Speaker 0]: Nice one. Literally the exact opposite of what was

[Senator Tanya Vyhovsky (Member)]: It's probably because we had to switch the language because before we have them proving the state of Texas. So it Yes.

[Speaker 0]: Right. Right. Definitely.

[Senator Tanya Vyhovsky (Member)]: Important catch. For sure. And I see how it happened. Alright.

[Senator Nader Hashim (Chair)]: So

[Senator Tanya Vyhovsky (Member)]: I mean, I continue to think that it is unconstitutional to keep these people in jail. But that's not

[Speaker 0]: new.

[Senator Nader Hashim (Chair)]: Why do you think it's unconstitutional?

[Senator Tanya Vyhovsky (Member)]: I mean, these are people who have been particularly the group of

[Speaker 0]: people who have been put on a crime.

[Senator Tanya Vyhovsky (Member)]: I don't think we can put those people in jail.

[Senator Nader Hashim (Chair)]: Okay. I think that we can, and it is constitutional. The majority of other states have similar language, not just for felonies, but across the board.

[Senator Tanya Vyhovsky (Member)]: But they do not house them under the in a correctional facility under the custody of the Department of Commissioner of Corrections. Yes. There are forensic facilities. They are not housed in jails.

[Senator Nader Hashim (Chair)]: Of the approximately 40 of them, there are about six that don't

[Speaker 0]: have jail.

[Senator Nader Hashim (Chair)]: And there are about six where it's unclear. But the others either have forensic facilities attached to their jails or within their jails, or forensic facilities that are essentially correctional facilities. Any other comments, questions? Wondering about the process the chair would like to pursue. Would you entertain a motion? Not quite yet. The we I I do wanna hear from potentially WellPath and the state's attorneys specifically regarding the language for whether or not for the old without failed language And just to make sure that doesn't have any unintended consequences, I'm just I wanna make sure that it's a bill that's narrowly tailored to life offenses and for people who are generally held to bail in those circumstances. And so I know health and welfare and institutions want to do a flyby or whatever call came out of this bill. Actually, before I forget, Daphne, do you mind emailing draft 4.1 to both committee chairs and their assistants? This morning in health and welfare, mentioned they have it on their agenda for Tuesday. And they also have contact information from WellPath because they interact with them more often. So they'll be hearing hopefully from them, and institutions will take a look at it as well. I don't think it will go into their own possession, but I do wanna provide them the time to look at it. And if in their jurisdictions, they see some glaring issue that needs to be addressed or they have any recommendations that we can address that. So my hope is to vote it out either Wednesday or Thursday when we get back. So still be before crossover. And that's yeah. So that's that's

[Speaker 0]: the time limit.

[Senator Nader Hashim (Chair)]: Great. Thank you. Alright. Anything else from DMH? While you guys are here.

[Karen Barber (General Counsel, Department of Mental Health)]: No, I don't have anything. I just wanted to be available in case there were any outstanding questions. I appreciate all the work the committee has done on this and and look forward to the continued conversation.

[Senator Nader Hashim (Chair)]: Excellent. Thank you. Alright. Well, thank you, Eric, for all your hard work on this as well.

[Speaker 0]: Yeah. Definitely. It's an interesting build. Yeah.

[Senator Nader Hashim (Chair)]: Alright. So we are we are done, and our agenda will sir Norris?

[Speaker 0]: What happened to one eighty six of it?

[Senator Nader Hashim (Chair)]: One eighty six, I need to do some more follow-up on with some other witnesses to see what that what that bill can or can't do, whether I mean, it's a very small bill. So, you know, if after I have some conversations, perhaps we can vote it out on Tuesday or Wednesday, the week that we return. And then going to see what we're gonna be able to do with that DUI bill. Think it's $1.79. So that'll be the week when we get back, and then we'll start diving into the house bills. Okay. Yeah. The the ones I just described are really the feasible ones that we can pass before crossover, and we can otherwise start digging into what the house has sent us. Anything else before we adjourn before town meeting? Thanks to Eric.

[Senator Tanya Vyhovsky (Member)]: Are we changing the language in the red recovery resume. I thought you

[Karen Barber (General Counsel, Department of Mental Health)]: were gonna have an amendment.

[Senator Nader Hashim (Chair)]: Yep. Got language for that, so I'll be presenting that.

[Speaker 0]: Oh, okay. Yeah. Oh. I wasn't sure

[Senator Tanya Vyhovsky (Member)]: because it was judiciary issue. The committee would look at that, but I don't need to

[Speaker 0]: figure out what else are people.

[Senator Nader Hashim (Chair)]: It was usually a crime. It's charged with a criminal a I

[Speaker 0]: the

[Senator Nader Hashim (Chair)]: a crime, and question. You technically haven't committed a crime until you're convicted. And so that's typically two years down the road after you get charged for the crime. So, Rob, just bringing it in line with how we have it written everywhere else.

[Speaker 0]: And theft is a crime, so it kind of doubled. Right?

[Senator Nader Hashim (Chair)]: Yeah. Well Did you leave that? The theft part is left in there. Really? The reason being that, at least according to the residency places, they wanted that differentiated so that if there is a theft, it's not that they have to call the police and they can just handle it internally Oh. Rather than getting police involved and potentially charging somebody. Alright. Well, we think we're done.