Vermont Legislature SmartTranscripts:

[Eric FitzPatrick (Office of Legislative Counsel)]: Welcome

[Senator Nader Hashim (Chair)]: back to San Judiciary. It's March 11. Now we are talking about S-one 193 and we have four equipment down there. Please introduce yourself again and happy to hear your thoughts on that. Of first.

[Laura Cushman (Attorney, Disability Rights Vermont)]: Great, thank you. Thank you. I feel like I'm moving in today. Honorable Chair, Vice Chair of Senators, again, I'm Laura Cushman. I'm an attorney at Disability Rights for NARS, and I won't go through all of our introductory statement about who we are at Disability Rights Vermont, but just briefly say that we are the protection advocacy agency for the state of Vermont, and we are the governor appointed mental health care ombudsman. And Disability Rights Vermont has also filed a federal lawsuit against the Department of Children and Family over concerns of abuse, serious rights violations of a former detention facility in Woodside. We also filed a response to the Department of Corrections in the past regarding abuses in the Southern don't know. Chief extension facility, It's been really written opposition to this bill, independent opposition, and I appreciate a thorough and thoughtful review and the provisions of S one ninety three that have been made by this community. I've watched a lot of the testimony over YouTube and see the thought that's gone into this. Any light of considering the amendments that have been made since our previous testimony was written, I've revised our testimony. It is still our position that the proposed forensic facility is a specialized prison and not a place for people who have not been convicted of the crimes. Regarding confidence in restoration within the Branson facility, section 1B2A of the current amended version of Abilities, If the court finds by clearing the missing letters, the person will not be restored to competency. The court shall order the continued commitment of the person taking into account the least restrictive conditions of living with. Continued commitment of a person who has not been convicted of a crime still raises cruel and unusual punishment concerns under the Key Commitment and Article 18 of the Vermont Constitution. We believe it should say that people who are found incompetent to stand trial shall not remain in the forensic facilities and shall be placed in be a least restrictive setting where they will receive appropriate treatment. But those facilities do not exist, and we believe that's part of the reason that we have this population of individuals that this bill targets. Whether you're talking about a secured or an unsecured facility, this bill does not address that the already self approved and sufficient residential treatment facilities in our current system of care. If people whose competency is restored or receiving is restorable, people whose competency is restorable were receiving appropriate and adequate care in our current system, then they would be returned to competency without the need of a forensic facility. For this bill that creates new rules or parameters for confidence restoration, individuals with intellectual or developmental disabilities, neurocognitive disorders, and those with traumatic brain injury who cannot be restored to competency, and in some cases have never been incompetent, should also be receiving appropriate adequate care in other current systems. For those reasons and others, this bill is unnecessary. A more effective bill would be one that provides adequate treatment programs for individuals with substance use disorder and mental illness who are falling through the cracks, and more residential treatment supported by the nursing facilities for people with an identity and neurocognitive disorders. In our current system of care, psychiatric inpatient hospitals and hospital emergency departments are forced to hold individuals who are ready for discharge and whose needs can be served in a less restrictive environment due to a lack of placement options and alternatives. This bill does not address what happens to those individuals who cannot be restored to competency, who do not require the most restricted level of care, but who cannot be transferred because an appropriate facility, even if a community does not exist or has space for that need. By passing this bill, you're putting the cart before the course. Not having those facilities available makes this community's thoughtful consideration about least restrictive means useless, because there is nowhere for these few targeted individuals to go. And a forensic facility is not the solution to that problem.

[Senator Nader Hashim (Chair)]: We are setting ourselves up for inevitable failure, and by failure I mean rights violations. At a minimum, there must be time limits on how long a

[Laura Cushman (Attorney, Disability Rights Vermont)]: person who cannot be restored to competency can be ordered and admitted and then held at an inappropriate level of care when no appropriate placement can be found. The fact that we know that our current seasonal care is lacking is so thanks to the question. What are the treatment views of the six individuals who we have heard in previous testimony, are currently reluctant to stand trial or not guilty by reason of insanity, who are being held in corrections now? What would meet their actual needs? Is it really a forensic facility? Or do we just lack appropriate services at the level of care they require? Please

[Senator Nader Hashim (Chair)]: consider

[Laura Cushman (Attorney, Disability Rights Vermont)]: the disabled people we're talking about. I've listened to much of the testimony on this bill presented to the Senate Committee on the Judiciary, and it's surprising how often mental illness has been mentioned in this conversation. But even Karen Baruth from the Department of Mental Health has told you this forensic facility is not for people with mental illness. The bill attempts to fill a gap in Vermont's mental health and criminal justice systems, but will target individuals with IDD, like autism spectrum disorder, or neurocognitive disorders, like dementia. When a person is found incompetent to stand trial or not guilty by reason of consent for a crime carrying a life sentence, and that person presents a risk of harm to the community and to mental illness, that person remains the responsibility of the Department of Mental Health. The Department of Mental Health has both the Vermont Psychiatric Care Hospital in Berlin for people who need a hospital level of psychiatric treatment, and the secure treatment facility at Rivers Valley for the treatment of those individuals who do not require inpatient hospitalization. Same people referred to in Section 3A of this bill. For this reason, section three A, as it pertains to people with mental illness, is unnecessary. People who are found not guilty by reason of insanity simply cannot use its gained indefinitely without a need for treatment and care. Whether in a hospital or community setting, their care cannot be neglected. If people with mental illness are appropriately placed, that only people who are not to commit, sorry. If people with mental illness are appropriate placed, then only people who are not mentally ill would be considered for this proposed forensic facility. If a person is committed to the care and custody of Department of Mental Health, then our current system entrusts the Department of Mental Health to appropriately place them. In testimony provided by surviving family members of terrible crimes that took the lives of their loved ones, the accused person was a person with mental illness. In some cases, they were a person with mental illness in the community on orders of non hospitalization who were not receiving sufficient DMH services while were refusing services. This was a criticism made before the Department of Mental Health at Valley Department of Heart handles people committed to their care. But as I stated, this risk facility would not be appropriate even for those defendants. The people with disability targets people with IDD, TBI, neuropathic disorders should be under the care of the of Aging and Independent Living, not the Department of Mental Health, and definitely not the Department of Corrections. We cannot say perfectly enough that the Department of Corrections is not the appropriate Department of the Care and Constitutes people with disabilities who have not been convicted of crimes as people with disabilities who have been incarcerated how the Department of Corrections has managed their care in relation to those disabilities. For several years, Disability Rights Response has focusing efforts on preventing construction of more remote facilities at the highest levels of restriction and promoting investment in less restrictive facilities and alternatives. We have also fought to end abuse by the Department of Corrections and to close facilities on suicide. The Department of Disability Rights Vermont remains committed to holding the state accountable to comply with legal mandates of the Americans with Disabilities Act, the immigration mandate, the Supreme Court decision of Olmstead, PLC, which say that individuals with disabilities have the right to receive services in the most integrated settings appropriate to their needs, that someone who has been charged with a crime does not alter those laws. Although this version of the government tends to ensure that we do not be in violation of these laws, it still creates yet another facility at the highest level of restriction and permissively ignores that Vermont's obligation to provide less restrictive treatment settings for people with disabilities remains on the map. The bill attempts to limit the use of voluntary medication by using seldom in The United States standard requiring that medication be substantially likely to render the defendant competent. However, applying this to a person with an IED or dementia is legally and medically suspect, and there is no medication as there is no medication that grants legal competency to someone with a permanent cognitive event. This bill does not go far enough to ensure that medication will not be inappropriately used on individuals for whom competency is unworthied. Finally, this bill proposes amending Vermont Rule, Rules of Evidence 10 eleven-one to make rules of evidence, evidence except for privileges inapplicable of the proceedings concerning competency restoration and revoking conditional release from the forensic facility. This means hearsay and other potentially unreliable evidence could be used to justify the continued locked tension of a person with a disability. In a proceeding where a person does not have the ability to defend themselves and their liberty is at state for an indeterminate period, the removal of these protections erodes a person's right to due process and fair hearing. We also disagree that the criminal court is an appropriate venue for hearings on involuntary treatment being insensitive and protected with private information that can be shared in hearings on the public record. You have an enormous amount of important work and proposals to consider before you. For the for this bill related to competency restoration and creation of a DOC administered forensics facility, I ask that you consider it from a disability perspective and with a clear understanding how your decisions might impact Vermonters with disabilities directly and Over twenty five percent of Vermonters live with disabilities. Every one of us is holding one accident or trauma away from being a person with disabilities. People with disabilities are not broken and they are not less than. But so much of what I have heard said in these committee meetings about this bill has been imbued with the subtext that this bill is meant to fix people so that they can stand trial. Having listened closely to the committee hearings on this bill, I have heard the subtle ways that ableism is embedded in this conversation. I ask you to please recognize and set aside any disability or mental illness bias when considering this bill. Also, please remember that each and every person who could be indefinitely detained if this bill passes is presumed innocent and not guilty. If our policymakers ignore the effect of negative stereotypes and misconceptions about disability and mental illness, then the policies they create will fail to meet Vermont's constitution's promise in chapter one, article eight, that our state government is instituted for the common benefit protection and security of all people, families, and communities members of our citizens. We must defend the rights of the most vulnerable among us even if they have been charged with fines. I appreciate your thoughtful consideration for our testimony, and I'm happy to answer questions and provide additional information. Thank you.

[Senator Nader Hashim (Chair)]: Just quick clarifying question for, I think it mentions, that was actually three day, page seven line two. She mentioned an issue there and I think there is a typo where it says unless and unless this is supposed to be the word if.

[Eric FitzPatrick (Office of Legislative Counsel)]: Sorry. Would.

[Laura Cushman (Attorney, Disability Rights Vermont)]: I'll go back and have a look at that.

[Senator Nader Hashim (Chair)]: So that that was flagged.

[Eric FitzPatrick (Office of Legislative Counsel)]: Case

[Senator Nader Hashim (Chair)]: Was your recommendation for page two, line 12 that the court shall take into account the least restrictive conditions?

[Laura Cushman (Attorney, Disability Rights Vermont)]: I think that the way that it is worded right now, I'll get back to my notes on that. It says The court finds that a person cannot be restored to competency or shall order continued commitment of a person that if it's ordered continued commitment of a person that they should not be committed, they should say they shall not, they shall not be put into a forensic facility. And taking into account, and you say, taking into account building restrictions, applicable. And I don't think that goes far enough to say, know, we think that it should say, We shall not predict the outcome, for instance, this only candidate shall be placed. Not taken into consideration, but they shall be placed in the least restrictive setting the importance of the law.

[Senator Nader Hashim (Chair)]: You. Senator Baruth?

[Senator Philip Baruth (Member)]: Thank you for being here. I'm wondering if Disability Rights Vermont has any pending or previous cases against WellPath and their treatment of people within our correctional facilities. We don't, I mean,

[Laura Cushman (Attorney, Disability Rights Vermont)]: I can say that we have occasionally received calls from people with complaints. Thus far, I don't think that we have gotten a request that an investigation has shown us that there's enough merit to proceed with something, a larger case. But it's not an uncommon complaint. And I know there's thousands of cases against them across the country,

[Senator Philip Baruth (Member)]: and so I wasn't sure if you had any. I know you're also not the only organization that might take those cases. Right.

[Laura Cushman (Attorney, Disability Rights Vermont)]: And we are Vermont specific, right? Right. And

[Senator Philip Baruth (Member)]: it is my understanding that there are some pending cases in Vermont, but there are not more cases. I just wanted to see if

[Laura Cushman (Attorney, Disability Rights Vermont)]: Okay. There were Thank you. Yeah. Thank you. We will

[Senator Nader Hashim (Chair)]: get to you folks orally, but since we have Legis Council here, there were a few changes that I wanted to make to the bill. And and then we'll get to few votes. Just so yeah. Thank you. Thank you. You have. Yeah. Yeah. Sure thing.

[Eric FitzPatrick (Office of Legislative Counsel)]: 4.1. 4.1. So I actually am amusing. Oh, sorry. Patrick, officer of legislative council. Nice to see you all this morning.

[Senator Nader Hashim (Chair)]: Likewise. So know that we did. Did we make any changes from 4.1 aside from switching the word unless with the word if? Pretty sure it

[Eric FitzPatrick (Office of Legislative Counsel)]: was still on 4.1. Correct. However, I did have the version proved and edited. So the pagination may not quite do the same. I found any changes would be purely editorial technical, but no, nothing substantive.

[Senator Nader Hashim (Chair)]: So there were a couple of changes that I wanted to propose that I think get somewhat at some of the issues, we've heard over the last week, not just concerns generally. And I think some of these things have been taken out, maybe inadvertently just because we've gone through so many different versions at this point. I just wanted to make sure now that we're getting to the end of this, this is all primarily for, it's actually entirely for the ngri section. Okay. So the first piece being as I'm looking for it I'll just respond but it's the forty day timeline that they have to have a hearing.

[Eric FitzPatrick (Office of Legislative Counsel)]: The initial hearing after they get sent to the correct person? Yeah.

[Senator Nader Hashim (Chair)]: And there's understandably some concern that Do you know where that is? I'm not

[Eric FitzPatrick (Office of Legislative Counsel)]: Yeah, at least on my version it's page six line 11. It's accepted it should be one. So

[Senator Nader Hashim (Chair)]: the concern being that forty days is a lengthy amount of time, the closest analog that I could find is, I think it's 7,554 for a bail review hearing. Right? Somebody who is being detained files a motion for a change of circumstances to have, and to modify their conditions and have failed review, the hearing had to be held within forty eight hours, and which is a very short timeline, but that makes sense because it's somebody who may have the opportunity to be free because of the change of circumstances. And so I think that it would make sense to have, rather than forty days, that would be forty eight hours. And I think that when you get to that adjudication stage, a vast majority of the evidence is going to have been presented already. And there may be evidence that somebody was only insane at the time that they committed the offense, but maybe under a different set of conditions at the time of the adjudication. And so I think that the hearing does have to be much sooner than the forty days that's previously listed as the first change.

[Eric FitzPatrick (Office of Legislative Counsel)]: Okay. Committee, any questions or thoughts? I'm just thinking forty eight hours might be

[Senator Robert Norris (Vice Chair)]: too rapid. Then my question, I mean, not if the resources are there to do it, but my next question would be, and maybe for Eric, what happens if there's a forty eight hour deadline and they miss it?

[Eric FitzPatrick (Office of Legislative Counsel)]: Well, the way you have the language now, it says it must have periods of defend by the court. So you allow the court to have a particular circumstances to So in other words, if you don't miss it and the court's resented, it'd be okay with it.

[Senator Robert Norris (Vice Chair)]: The court didn't extend it. They just were not paying attention and forty eight hours elapsed, no extension, you know, nothing.

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: This is off the bottom of

[Eric FitzPatrick (Office of Legislative Counsel)]: head, so won't be saying this verbatim, but the court does have some decisional law that's developed over the years around whether time limits and statutes are jurisdictional. Other words, if you fail to meet the time limit, does that mean there's some heavy thinking of consequence, like maybe the person has to be released or that they can't be sent to the forensic facility. And generally speaking, I think I've got a very recent, I think the principle that they use is that if the statute doesn't say specifically these time limits are jurisdictional and in order to adhere to them means does and such. That there to adhere to adhere to make the limit doesn't necessarily mean the case gets dismissed or something like that. Okay. But it could become a factor if it became a long Yes. Yes. A long situation. Or the court might, that's a factor in the court saying, well, okay, maybe we're not going dismiss, but we may do some other sanction if you would have granted or the court with the defendant counsel. You know, in this case, for example, could come up with some other possible consequence of the failure to meet the limit. Doctor. Nelson?

[Senator Philip Baruth (Member)]: I support the change and I certainly understand that the courts are under resourced, but we're talking about someone's liberty interest. It feels pretty important to me that they prioritize it and be paying attention.

[Senator Robert Norris (Vice Chair)]: No, understood. We're at forty days now going to

[Eric FitzPatrick (Office of Legislative Counsel)]: seems Yeah,

[Senator Nader Hashim (Chair)]: I mean, hear where you're coming from. It's, but you know, it's I understand the urgency of getting it done much sooner. Having dealt with it myself, know, who's in jail and I'm representing them, significant change of circumstances have arisen and you know the light at the end of the tunnel is right there for that to get released. You want that here and done? Hey Seth. Yeah. So I Yeah. I mean, what Eric said

[Senator Robert Norris (Vice Chair)]: works for me. In other words, forty eight minutes after forty eight hours, the person is fully stopping the street.

[Senator Nader Hashim (Chair)]: No, it's that I've seen it where, you know, the motion gets filed and the court has the hearing four or five days afterwards. And, you know, unless it's, unless there's some huge material impact that happens as a result of that delay it doesn't make a huge difference unfortunately it should but

[Eric FitzPatrick (Office of Legislative Counsel)]: yeah Yeah, so with that understanding, I would support forty eight hours. And

[Senator Nader Hashim (Chair)]: the next piece, which was originally in the bill with a much higher

[Eric FitzPatrick (Office of Legislative Counsel)]: periodic review, and I

[Senator Nader Hashim (Chair)]: think it was the finish of five years for NGRIs. The automatic review to see if somebody has been released It was originally five years, and right now it's just by the petitioner. And we added the automatic review, the competency restoration for every six months. And another case I read that mentioned that having it just be petitioner only, is problematic. And so I'm not sure how it got taken out, but I feel that we should put it back in, that there should be an automatic review, periodic review for NGRIs rather than just relying on a petitioner based schedule. Does that make sense? Or did I articulate clearly what I'm trying to get at?

[Eric FitzPatrick (Office of Legislative Counsel)]: Oh yeah, definitely. Makes sense to me from a drafting perspective. And I think

[Senator Nader Hashim (Chair)]: making it in line with what we already had in competency restoration, which is six months, I think it should also be six months. Right. So

[Eric FitzPatrick (Office of Legislative Counsel)]: then there would be some kind of parallel track to the language that, I think if we're looking at the same version, in my version, it starts in the bottom of page one and goes over on the top of page two. You'll see right tab, the branded facility, once a person gets admitted they have to be evaluated upon the sooner basically at every six months or the clinical director thinks that it should be served.

[Senator Nader Hashim (Chair)]: So it

[Eric FitzPatrick (Office of Legislative Counsel)]: would be something similar to that. I go before I file this up. So Tanya, correct. And you still want to have the, in other words, you don't discard the part about the petitioner being able to institute their proceedings.

[Senator Nader Hashim (Chair)]: No, think they should be able to because you can have the automatic hearing, but then it's possible that a week or two later something significant could happen and they should have to wait another five and a half months to be able to petition for their freedom. That

[Eric FitzPatrick (Office of Legislative Counsel)]: was exactly my question, which was you want to have the petitioner be able to file at any time. So in other words, they do something and two weeks later then you file again. Yes. So get rid of the one year document. Right now the bill has a, I think probably on your version, page nine, lines 12. If the court,

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: if they file a petition and

[Eric FitzPatrick (Office of Legislative Counsel)]: the court says no, have to wait a year before they file a notice. You wanna get a restowment? Right. Yeah. There's a time figure if you want.

[Senator Nader Hashim (Chair)]: I I think yeah. I I think we just strike that. That's fine. Just they'll have the periodic review every six months, but they can also petition after that periodic review. I mean, if somebody files 10 of the same petitions in one week, courts are going to tell them to stop like that. But so, you know, I I I don't anticipate there being some sort of issue of frivolous court violence. So there's there's holes around that.

[Eric FitzPatrick (Office of Legislative Counsel)]: Okay, Ben. I mean, committee, any thoughts on these things?

[Senator Nader Hashim (Chair)]: And the last piece is regarding the least restrictive means concepts. We have that for competency restoration. I'd also like to make sure that the court takes into consideration, or that they shall consider the least restrictive means for NCRI as well, which is what we have for if it's appropriate. I

[Senator Philip Baruth (Member)]: do have a question. And it's so bear with me. We have language around bail that says the pork shall consider ability to pay, but that means that they shall think about it, but they don't have to actually use it. Or is using that language here the same effect that the four count considerate, but they absolutely don't have to follow that consideration?

[Laura Cushman (Attorney, Disability Rights Vermont)]: Okay. But I'm trying to find current point which is is it

[Eric FitzPatrick (Office of Legislative Counsel)]: in the competency piece that you're saying? Yeah. Yeah. Right. It's on page two. Well, I think page anyway, I saw that in the competency. So basically, you want that same concept in the NGRI. Yeah. Gotcha.

[Senator Nader Hashim (Chair)]: And this is a hypothetical question that I'm just curious about here. Not a recommendation at the moment. And then and then we'll switch gears to witnesses. But the on page seven, the lines 11 through 12, a placement of a person at the forensic facility should be for an indeterminate period and shall not have a specified pen date. What if the if that were removed, what impact, if any, would that actually have on this? Because at least at first glance, if it were to be removed and the laws, it's silent on that, wouldn't it still be for an indeterminate period of time? Or is that something that you should revisit?

[Eric FitzPatrick (Office of Legislative Counsel)]: No. I think I I agree with that. That if you said, for example, if you just struck the first sentence in subsection c, that that part that what you referred to about the indeterminate period and not a specified ending, And he just began with the second sentence, and I might rephrase it just slightly to just say, a person Committed to the brand of the facility pursuant to this subsection, instead First, we went to this, the section. Sean, I'll be released to the court. Think it's the effective use sentence. I don't think it would have been would matter substantively whether you got that sentence or not.

[Senator Nader Hashim (Chair)]: Alright, Senator Baruth, and then we'll move on.

[Senator Philip Baruth (Member)]: I am sort of circling back to that previous question about whether or not the court has to follow the least restrictive. And my understanding is under the Olmstead decision, we have a legal obligation to provide treatment in the least restrictive means necessary. And that right doesn't go away if someone is pending trial or found not guilty for reason of insanity. So constitutionally, how does it hold up that the court can just choose not to use the least restrictive treatment necessary?

[Eric FitzPatrick (Office of Legislative Counsel)]: The constitution would take precedent over the statute. So I have not thought about the issue of how this new process would operate under Olmstead. However, leaving that point aside for a second, if the principle that you described at the moment said that these restrictive means is necessary applies here, then that applies whether or not the single statute would supersede that contribution.

[Senator Philip Baruth (Member)]: Okay, and I appreciate that. I do think given that we're talking about treatment, makes sense to take a constitutional view of the bill under Olmstead. Like, what we're proposing constitutional under the Olmstead decision, I guess, is my question. I hear you say you haven't done that analysis. No.

[Senator Nader Hashim (Chair)]: Okay. Go through you guys with that question sometimes soon and yeah so we'll circle that around.

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: Okay

[Senator Nader Hashim (Chair)]: and I want to provide time so we'll switch gears now. Thank you, Eric. Yeah sure. And do you folks want to that quiet?

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: No. All right.

[Laura Cushman (Attorney, Disability Rights Vermont)]: So from

[Eric FitzPatrick (Office of Legislative Counsel)]: a practical perspective, if you wanna do it, we'll go ahead and send it, and then I can send it to Emory or something. And then the next step, and you probably know that there are quite well, health and welfare and institutions who have still had the sense that they were interested in not which probably about two grants. Okay. That would be

[Senator Nader Hashim (Chair)]: Welcome back. And just for timing purposes, because I also want to get some time to let DFH get this in the room, would about six ish minutes work for both of you or is that too short? Okay, great. Floor is yours and now please just introduce yourself again.

[Mihaela Roninski (Mad Freedom Advocates)]: Yes, thank you so much for having time for us to come again. Apologize for some of the mix up on the topics earlier. Thank you for the new bill language. I appreciate seeing some changes around language around mental disease and defect. And yes, I really appreciated listening to this conversation as well and hearing that you're really considering the constitutionality and Olmstead and people's liberties being at stake. So I'm here from Madame Aggregates. My name is Mihaela Roninski. I won't completely introduce myself again given the moment of your time that Matt was here earlier, but I'm speaking from a lived experience perspective and through my role as a patient representative and advocacy team member. Here to speak on S-one 193, and after waiting to establishing a forensic facility for certain criminal justice involved persons. So I wanted to speak a little bit about the piece on indeterminate intention, which I know you just talked about taking out. And also, think that it was really important to determine that even if that language was taken out, it would still be an indeterminate time. When I was institutionalized, had not been accused or convicted of a crime, but I was also placed in a facility for an indeterminate period without a specified end date, and it felt like being held without bail or without trial. That feeling is really terrifying. Every day you wake up wondering what you need to do to get out, what you're doing wrong, that you're still there, and what people expect from you without any sort of blueprint or being simply trapped. And I think there needs to be really clear clarification around what exit policies are in place rather than just eliminating that line. When policies allow for indeterminate detention, bias and systemic incentives can easily creep in. Even well intentioned systems can become vulnerable to abuse. For instance, I was held for over two years in a facility where the average stay was a year and a half. I spent years of my life thinking something must have been inherently wrong with me to be held for so long. A few years ago I spoke with a former staff member who told me that while she couldn't be certain, she suspected that the fact that my family had strong insurance coverage played a role in my long length of stay. That years of inherently feeling flawed only to find out it may have had nothing to do with me at all. That's why policy, specifically policy around criterion to exit facilities, must be clear and easily followed, not language that is included here such as clear and convincing evidence on page two line 10, which could lead to people being held indefinitely based on subjective assessments. This language also says that someone must prove they're no longer suffering a qualifying condition that puts them at risk of causing harm upon release. This was page one, line 15. But anyone at any time is at risk of causing harm, and stating that someone's condition status determines their risk of committing a crime's discriminatory language. Many people live with ongoing mental health challenges or impose diagnoses while posing no risk to others, myself included. Requiring someone to prove they no longer experience any mental health challenges, that's an impossible and unjust bar. I feel safer when we treat everyone as accountable, not just people we believe we can expect harm from. This bill language also states that people could be committed to this proposed facility simply because they've been charged with an offense punishable by a life sentence. That's page one, line 12 of the new version. Charged, not convicted. Our legal system is built on the principle that people are innocent until proven guilty. Detaining someone indefinitely based on only a charge, whether it's prison or a forensic facility, which, Laura highlighted, is kind of another name for prison, She undermines that fundamental principle. This judiciary committee is in charge of ensuring policies prioritize public health safety. It's important to recognize that simply having a mental health diagnosis does not make someone more likely to commit a violent crime. I recently spoke with a community member who had been previously both incarcerated and institutionalized in Vermont. They told me that because of the increasing discussion around executive orders of forcibly institutionalizing unhoused people with mental health challenges, they were considering committing crimes in order to return to prison rather than risk being indefinitely institutionalized in a psychiatric facility. That should give this committee pause about increasing institutionalization in the name of treatment at an apprentice facility. And as mentioned previously in Article 18 of the constitution, cruel and unusual punishment, Similarly, in the UN report of the Special Rapporteur on Torture and other cruel and human and degrading treatment and punishment, it reads that inappropriate or unnecessary non consensual institutionalization of individuals may or may torture or ill treatment of use of force beyond that which is strictly necessary. By this definition, a forensic facility could constitute the UN definition of torture. Every testimony I've read in support of this facility has stated their rationale for building it to be that people are too dangerous to be in community. How can we trust that this facility will help people rejoin the community when the very basis of building it is to segregate people who being dangerous? Again, the segregationist gets the whole set out. I stated earlier that I gave disability advocacy testimony to House Healthcare Committee and was told that a lot of times the voices that committees are hearing are from those from institutional staff. I looked through some of the testimony around this bill specifically and I saw that there was a lot of testimony from the Department of Corrections, state attorneys, sheriffs, and Vermont judiciary. However, I also saw a lot of testimony from places that have submitted opposition to this bill, such as Vermont Legal Aid Disability Law Project, Vermont Del Valle Mental Disabilities Council, Disability Rights Vermont Free Non Self Advocates, State Program Standing Committee, and others in Act 27 report. These organizations collectively represent thousands of Vermonters with disabilities and or mental health challenges whose lives will be affected by policies like this. I hope that their voices are given equal weight in this conversation and are not drowned out. In a victim's hearing related to crime victims that has been used to justify passing of this bill, families stated that they were left in the dark once a suspect had been determined incompetent and described uncertainty about the status of cases and court dates. Those concerns are valid. Victims deserve transparency, communication, and meaningful pathways towards justice and mutuality and justice. However, none of those problems inherently require creating another locked facility or forensic facility. I think the solution is a better system for communication, accountability, and restorative justice. As someone who's been both a victim and been confined in a locked facility, I do not believe building a forensic facility is the solution to violent crime. Vermont has long struggled with shortages of housing, community placements, and supportive services. One area in which I potentially disagree with Laura, although I very much support her testimony, is that I do think that a lot of those solutions do exist. I think that they are inaccessible, long wait times, and that there are a lot of barriers to going to those. And that's why I believe we need to expand to places that people say already are working. So many community members talk to me about the care that they've received at Care Respits, at Rosewood Cottage, at Lissom, Mental Urgent Care in Soteria. These exist and people are telling us that they're working and there are people who have been previously very involved in our justice system who have attended these programs that are community based and have remained free of the justice system. And so I think looking into expanding residentials or inpatients, I don't think that's the answer either. I think this idea that we need to lock people away is really harming us when we see the progress that people are making in communities staying outside of the justice system. Yeah, I think that is, I really urge you to reconsider S-one 193 today. I see other bills in other committees that, such as H-two 27 and H-eight 17, which are for expanding peer respites and for expanding peer to peer programs in schools. I think those are more of the direction that we want to be heading. And so, yes, I urge you to reconsider this bill as is. I appreciate some of the suggested language changes. Don't consider the ones that I outlined today, and that you will consider putting this bill against the Olmstead decision as set previously. So again, sorry for the mess up this morning. I really appreciate the opportunity to come back. Welcome any questions, and yeah, thank you.

[Esme Koki (Mad Freedom Advocates)]: My name is Esme Koki, and I also work for Mad Freedom Advocates in the same roles as Nayla. I got into this work because of a mental health crisis brought on by trauma I survived five years earlier, and the conditions in my life at that time that mimicked the intense loss of autonomy I experienced at the hands of an abusive partner. I was doing what I was told would help. I started seeing a therapist and psychiatrist, but I was scared that if I told them about my suicidal ideation, they would initiate a process to get me institutionalized in the name of helping me, but at the expense of my autonomy. This happens all the time in the mental health system. For instance, if you call 988, the National Suicide Hotline, if the person on the phone there to support you decides that you are at risk, they can send police to your location without your consent. If your therapist, the person you're confiding in, decides that you're a risk, they can start a process to get you involuntarily committed without your consent. As my crisis escalated, I could not function at my job and I could not pay rent. I became housing and food insecure. By the grace of the caring and generous people in my community, I was able to crash on couches, house sit for people while they were away, and eat a lot of free meals. I am forever grateful to have strong enough connections to friends, family and community members that I did not have to sleep outside for one night for those six months. These same community members offered me the support and connections that I did not receive from the professionals paid to offer it, like my therapist, my psychiatrist, or the outpatient program I did with the Battle Girl Retreat in order to qualify for FMLA. What was actually supportive in my recovery was being connected to people around me and being free to express and process the intense rage and grief I was feeling. Having respite from the requirement to filter and minimize my emotions in order to have a roof over my head and food to eat allowed me to move forward and regain capacity. When my housing and food struggles began, I considered checking myself into a hospital just so that I wouldn't have to worry about these essentials while in the crisis. However, the cost of my autonomy and isolation from community always outweighed the benefits. I was fortunate instead to hear of a list of Cure Respite Free to all Vermonters. This is one of the ones they have mentioned. This place offered me time to recalibrate in a safe space where there are no strict attacks or getting my basic needs met. I could come and go as I pleased and there are resources and people to talk to available, only if I chose that. Without the threat of coercion or the stress of food and housing, I've had the space to tend to my emotional needs freely. If instead of this experience of voluntary and community supported healing, if instead of this I had been institutionalized or given mandatory treatment, I believe my crisis would have escalated and my relational trauma compounded. Being locked in an institution against my will or forced into a treatment program that I don't want would be a continuation of the violation of consent and a bodily autonomy that I was recovering from. Being forcibly medicated so I'm more compliant for hospital staff brings two parallel to my abuser getting me intoxicated so that I would be less resistant to their abuse. Being put into the formalized power dynamic of being locked in a hospital wing by my therapist would be the ultimate betrayal and confirmation that no one is safe or trust worthy despite whatever foundation we have built. And once I got out of the hospital, I would still be housing secure, but I would be cut out for my community and for my sense of self determination and my ability to be responsible for myself. Staying connected to community and building my relationships is what has allowed me to stay afloat and even get to thrive. So many people do not have access to the community and resources that I did, and having that access is why I did not fall through the cracks. But everyone deserves support and respite regardless of how socially connected they are. I believe much would change in our capacity to do harm and to be accountable to that harm if none of us had to worry about where we were going to sleep at night or how we would get our next meal. Can we start there before we spend millions of dollars on another coercive treatment facility? We don't need to add more trauma to what folks have already gone through. I truly do not believe we will reach safety by compounding trauma and harm. For the folks who have caused the harm and are sent to the forensic facility, for their family and friends and community who are separated for them and worried for them, and for the folks who are too scared of being met with coercion to reach out for help. I also want to speak to the experience of crime victims. I truly empathize with wanting people who have harmed you to be locked away so they can't hurt you anymore. I have felt bad about people who have harmed me. However you process your experience of harm is valid and we all deserve safety. That being said, I don't think this forensic facility is a very effective plan to create safety for us. I do not believe that getting folks to comply with a coercive system translates into real engagement and accountability and change behavior. Using punishment as a motivator does not lead to deeper change and this forensic facility would be a form of punishment. I also have concerns about sending people to a locked facility because they aren't believed to be capable of accountability for harm they've caused. Locking someone away is not a substitute for acknowledgement of the harm and impact of that harm. I also think it is dangerous to codify any system based on the idea that some people can't be held responsible for their actions because of an identity they hold. We've heard boys will be boys as a rationale for men not being held responsible for harm they cause. I'd argue that not expecting accountability because someone isn't in their right mind, or something like that, is also problematic. It feels unsafe to me to think that people might have lower standards for harmful behavior of some people because that's just how they are, or we can't expect better from them. As a survivor of violence, an important part of safety for me is people around me recognizing and validating harm when it happens. Having a different set of standards for folks based on their perceived mental state is dehumanizing and enables coercion. I don't contend to have all the answers on how to create safety for all of us. However, in my experiences of being victimized, it is much harder to set boundaries, get space, and pursue accountability if that can mean the person who's harmed you could be locked up for life, whether that is in prison or in this proposed forensic facility. Because it is a life sentence to send folks there until they regain competency when they may never meet the legal criteria for competency. And I don't want to perpetrate the loss of bodily autonomy that I have suffered onto anyone else. I appreciate the time and attention on our testimonies today. I

[Laura Cushman (Attorney, Disability Rights Vermont)]: hope you

[Esme Koki (Mad Freedom Advocates)]: will thoroughly consider all the perspectives we have shared in your judgment of SB193, and I hope that you will incorporate disability policy into every future bill. Thank you. Thank you.

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: For the record, Care Bover, General Counsel for the Department of Mental Health. Appreciate the opportunity to intensify today. I just wanted to say a few things. The first is that this is a hard issue. I'm not here to pretend that it's not. I think there's a reason that the legislature has spent ten years talking about the need for a forensic facility. We fully appreciate that there are real philosophical divides about involuntary treatment for any type of treatment. And there are folks that believe that anyone can and should be served in the community. And while the department aims for that goal, and the majority of our budget is spent on community programs, and when I came to you several weeks ago and talked about our system, I talked about our pyramid. At the bottom of the pyramid is community programs. By far the vast majority of

[Esme Koki (Mad Freedom Advocates)]: our money and our programs are

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: at the community level. And DMH and the rest of HS must live in the reality, not the ideal. And the reality is that there are people who are dangerous and cannot be served in the community. We worked really hard to narrowly tailor this proposal. We are only talking about less than a handful of people a year. These are folks that have been accused of committing the most serious crimes. We are not talking about expanding civil commitment for the general population. We are not talking about people accused of committing misdemeanor. We are not even talking about anyone accused of committing any felony. You're talking about a very small subset of the vote. And we know that there are real public safety concerns and we do everyone in disservice that we lose sight of that. This isn't an eitheror, it's a yes and. DMH, yes, there are bills out there to expand community programs. We support those. We work hard to do things in the community. And we can't only focus on the community because we know that there is a gap. We know that there are folks that are not able to be served in a secure setting and we are seeing real public safety issues because of that. There is a reason that every other state has some form of a forensic facility. I think Vermont is right. We are an outlier and that we do really prioritize personal autonomy. It is very hard to get involuntarily admitted here. I know it probably doesn't feel that way to a lot of people and I get that. VR and Vermont have really prioritized making sure that those are very high standards. We don't have a general fund hospital. We only have hospitals that are CMS certified and Joint Commission accredited. We only have facilities that have high political bars in Vermont. That is unlike any other state. And the reality is, is that we're not serving everyone and that there is a gap, and that is what we are trying to serve here. And I think it's really important that we don't lose sight of that, that we're really only talking about something very narrow. And I want to talk about Olmstead too for a minute, because that's something PMH thinks about all the time and something that all of AHL thinks about all the time. It's easy to say, old citizens, you can't do something. I want to be really clear, Olmstead does not say you cannot have institutions, right? Because the reality is that you do have to have them. The goal is making sure that if you can serve someone in the community, you are doing that. It doesn't mean that the reality is that there are some people that must be served in institutions, at least for a period of time. And when we were proposing language and we talked about this bill that it may not be something that Council has put a lot of thought into And that is the reason why I think we're losing sight of it, it says shall be committed unless subsection B applies, right? And subsection B says, if the court finds that they're not a public safety risk, the court shall discharge them. You have thought about this, Right? We have made sure that due process is built into every part of this because again, that's something really important to us. We do not want to have people involuntarily in facilities if they don't need to be there. That is absolutely not our goal. But what we are talking about is the reality that we live in, which is that some people are public safety risk and have clinical concerns. And so we are working on creating a model that addresses both and has pathways to discharge. I think you can't just say, you'll be discharged in a year because you don't know the clinical needs of the person. Just like when someone is committed to DMH testing, don't

[Laura Cushman (Attorney, Disability Rights Vermont)]: know how long they're going be in

[Carey Bower (General Counsel, Vermont Department of Mental Health)]: the hospital. It's not, you can't just put a number on it. It's about their clinical needs and those are being assessed by professionals just like the forensic facility will be staffed by professionals who are looking at those things. So I just kind of wanted to

[Laura Cushman (Attorney, Disability Rights Vermont)]: make those points and I'm happy to answer any questions. Thank you. Any any questions?

[Eric FitzPatrick (Office of Legislative Counsel)]: Okay. Thank you. Appreciate it.

[Senator Robert Norris (Vice Chair)]: So

[Senator Nader Hashim (Chair)]: I see. I can stay live.

[Laura Cushman (Attorney, Disability Rights Vermont)]: Okay. Perfect. Thank you, miss. So

[Senator Nader Hashim (Chair)]: folks, you know, we are switching gears. Fire is still the fifth s one eight one. That's why here.

[Eric FitzPatrick (Office of Legislative Counsel)]: And so

[Senator Nader Hashim (Chair)]: that was the short bill yesterday regarding the two sentence. So thank you for coming in on such short notice. Appreciate it. Just wanted to get your perspective on S-one 181. It's what I consider to be a small technical change, something that my intention is to make sure you're kind of life and flow

[Eric FitzPatrick (Office of Legislative Counsel)]: a little bit during EOC in some

[Senator Nader Hashim (Chair)]: of these circumstances. Just wanted to confirm that that's the case. Yeah, the floor is first.

[Pat Smith (Field Operations Manager, Vermont Department of Corrections)]: All right, thank you. So I don't know most of you know me. I'm Pat Smith, I'm both the Department of Corrections and Field Operations Manager. However, I've been a probation officer with and in Central Vermont for fourteen years, so lots of PSIs have risen. I've also seen the PSI process change and now I've been in the position where I can build it and then standardize it and make it better. I did read to repel the deferred sentence in the Department of Corrections. We find a lot of value in the pre sentence investigation.

[Eric FitzPatrick (Office of Legislative Counsel)]: It's a

[Pat Smith (Field Operations Manager, Vermont Department of Corrections)]: great way of taking a snapshot of someone's life, not just looking at a record. You find out we're able to build a baseline and use that for assessments that follows an individual into the criminal justice system. So we're looking at it in a bigger picture way. We also find that the pre sentence investigation, especially I can speak to my own experiences, it gives the victims a voice. That sometimes it's hard for someone who's been harmed to go into court or testify, but having that individual's conversation with a probation officer to receive a statement. I've sat with individuals who have been harmed both by burglary, which seems, you know, is not on top listed violent offenses, however it impacts someone's how they feel safe. And when you have somebody outside of people around home improvement, again, a non listed non violent offense, but it hugely impacts them and their trust in having someone come to their home and lose thousands of dollars. And the pre symptoms of investigation can lend an avenue or to go to people who have been running that voice that they may not necessarily immediately get and or feel comfortable providing an open court with the rear seat of the accused or the defendant at that time. So the department finds a means that it's very important. It's a good tool. I thought the community was probably coming in as a friend of our own policies around the timeframes, knowing that there's a concern about the backlog with courts and the loss of a pre sentence investigation. In our timelines for a standard PSI, we're just a minimum not less than seven days, but no more than twenty one days. A standard PSI is relatively shorter, but it does help you with the assessments used to determine programming appropriate referrals to and community partners. Now, a sex offender or PSI is sixty days, and those I just want to keep emphasizing the main points of the sex under PSI, because again, it captures the whole pictures. We're able to do in lines with other agencies like Hispanic children and families, and that's

[Senator Nader Hashim (Chair)]: a sixty day separate disability. If I could just interject real quick. Just so when we first set this up, we discussed making some changes regarding where this would be applicable and making it so that it would still apply to listed offenses. So this is really to get at the less serious offenses in which, at least anecdotally, have heard that there were some circumstances where it feels unnecessary or burdensome to do a PSI for a misdemeanor that may not have an element of violence, for example. And so that's one of the changes that we were getting at when we first talked. Also removing the strike through that's on eleven and twelve regarding victim impact and just taking statements of the parties. So just wanted you to have that information.

[Pat Smith (Field Operations Manager, Vermont Department of Corrections)]: If you're speaking, my understanding is that the court and the state's attorneys already have that ability to waive a PSI process. I've seen it done both for Lusivius Panda cases that are to serve, so repelling it completely would, my concern again is those non listed, non violent crimes and burglary that are greater or say an individual ruling out individuals who are being sentenced up to 13 retail thefts, which are all misdemeanors. However, the impact to those business owners on those retail thefts and not having that avenue in a one on one conversation, I think, doesn't really, you know, it doesn't support the compassion management supervision that we're really looking at the department initiates and tries to unfold in our practices. That would be a concern for me. Not me, personally, but for the department, excuse me. Again, I've sat and done those interviews with those non listed burglary of home improvement frauds cases, and the impact, I think, is to those who are harmed to lose that avenue, would be unfortunate.

[Eric FitzPatrick (Office of Legislative Counsel)]: Yeah, I think I get where you're coming from.

[Senator Nader Hashim (Chair)]: I think it was Senator Norris who actually asked, whenever it was we took this up, to confirm that judges can still order PSI. I think the You know, I think that, you know, when you reach that sentencing stage and if, you know, victim interviews aren't involved, think and a judge is missing information that would be necessary for them to impose sentence, deferred sentence. And I think it's likely, I mean, is speculative about the judiciary, but I think that we'd likely see the judge ordering a PSI. So I guess that's just a comment.

[Pat Smith (Field Operations Manager, Vermont Department of Corrections)]: Do you have any questions or any part of the process which I think clarified? Again, the timeline, part of the corrections is under the agreement. Okay, but we need to we're submitting things in less than twenty one days, you know what I mean? And or for a standard PSI. So if those timelines are met and or the court is setting those sentencing dates, We're meeting those deadlines and getting them there. I'm not sure if that speaks to any of the backlog of understanding there's always motions put in for continuances. But I, again, speak to even on contested sentences for long, know, 41 dockets of retail theft, you're gonna, you know, the court, I feel, has asked and inquired, like, is there a substance use disorder that you're not gonna pass unless it's through, you know, the defense attorney for.

[Senator Robert Norris (Vice Chair)]: So, I do have a quick question. So, am I understanding you right that you think that PSI is an avenue for victims to communicate directly prior to a deferred citizen?

[Pat Smith (Field Operations Manager, Vermont Department of Corrections)]: Yes, think they're yeah, the department's been working really hard on. I'm sure you guys have heard full screen contact with victims at this time that yes, I do think it is a avenue for victims' voices to be heard, they may not submit letters. That's included in the packet of those preceptance investigation that goes directly to the judge. There's time in the space of, I got nervous coming here. If I was, you know, a person who's harmed doesn't sign up to go to the criminal legal system, So sometimes having that one on one conversation with the investigator is very helpful. Thank you. Thanks.

[Senator Nader Hashim (Chair)]: Any other questions?

[Eric FitzPatrick (Office of Legislative Counsel)]: All right,

[Senator Nader Hashim (Chair)]: well thank you for coming in on short notice and we just want to get your perspective off this.