Good morning. Welcome to the point hearing with the House Judiciary Committee and the House Committee on Corrections and Institutions. It is Wednesday, April 3rd and we are going to be getting a background orientation on bail on conditions of release and then we'll be focusing on that's 195 and I'll turn it over to Legislative Council. Thanks for the introduction. If we don't know each other by now, we never will. Good morning everybody. Happy Wednesday. My name, my name is Ben Novograzky from the Office of Legislative Council and we will be doing an overview of pre-trial release, specifically bail and conditions of release. And at some point there will be, this presentation will be printed out for you guys to have handy and I recommend keeping this because it's going to be a valuable resource to come back when it comes to 195 and some other bills, especially in the Judiciary Committee. So without further ado, let's get started. So we're going to start with some important terms and definitions to just keep in mind as we go through this. The first is bail. Bail is actually defined in our statutes as any security, including cash, including cash pledged to the court to ensure that a person charged with a criminal offence will hear at future court proceedings. Now you will hear bail used more broadly than the specific definition. A lot of people refer to bail as sort of all inclusive of including conditions of release. In other states, it is not necessarily only a security or cash, but in Vermont it is defined power. Then there's appearance bonds, which is a way bail can be achieved. It's a written agreement to pay a specified amount if a person fails to appear. A secured appearance bond is a written agreement and a portion that is paid prior to release. That's usually about 10% of the amount that is set by the court. And then there's a surety, which is someone who agrees to be responsible for guaranteeing the court appearance of another who's charged with a criminal offence or a person who agrees to be responsible for guaranteeing that another person applies for with the conditions of a peace bond. We're not going to get into a peace bond. It's something that's rarely used. It's actually not even technically part of bail analysis. It's its own separate proceeding. But you want to find out more about peace bonds. I will happily talk about it with you another time. Some question about peace bond. And then a surety bond. Again, written agreement to secure the appearance of another and someone that pledges to pay the court specified amount if that person fails to appear. And then finally, flight from prosecution. This is really the main purpose of bail and it's any action or behavior undertaken by a person charged with a criminal offence to avoid court proceedings and that is a defined term. And you there are a few years ago, our statutes were changed to incorporate ensuring to mitigate someone's flight from prosecution to replace ensuring someone's appearance at court because it's a little bit broader than just just that. So those are the general definitions and terms going into any questions. Those terms represent don't. So, aren't these bonds that you're talking about are those examples of bail is bail kind of the umbrella and those are things underneath it would be the amount either cash or security and so bonds or securities that would be set by the court. So these are ways that someone can make bail post bail without having to pay the full amount. So, is there anything in our bail statutes or bail in general that's driven by our state constitution? Yes. And that's important for people to know and we will be getting to that. Okay. Thank you. Because we updated the bail loss a number of years ago, but it's really limited based on what you can do because of our state constitution. Absolutely. Okay. And I'll be getting to that in a couple of slides. So any questions about the terms or terminology before we venture forth. Okay, seeing none. So just a general overview of what pretrial release is some general concepts to keep in mind people are innocent until proven guilty and that is really the touchstone that everyone should keep in mind when it comes to bail. And why people are released and why it's difficult to incarcerate people before they are adjudicated of an offense because they have yet to be proven guilty. So that is the overarching concept that you need to keep in mind when you're grappling with balancing the policy choices associated with bail like public safety. And the concepts of bail and pretrial release are grounded in the US and Vermont constitutions. The 8th amendment, which essentially says bail cannot be excessive. And then there's the Vermont constitution chapter 2 section 40 and then chapter 229 of title 13, both of which we will review here today. The other concept to keep in mind the sole constitutionally legitimate purpose of bail. So bail as in using cash or sureties to secure someone's appearance is just that to ensure a person's poor appearance. It cannot be used for public safety as its primary purpose because or as a punitive measure to punish somebody who may have violated something. Um, as part of their conditions of release. So that is a really important concept. Okay. Good.  Correct. That is. Um, so it cannot bail cannot be set to such an extravagant amount that it would be considered excessive and essentially punitive so that somebody could not make bail. So is there like, uh, somewhere where there's a. That you or something that goes. Well, there's guidelines on that. There's. I mean, there's case law. There's case law. And in Vermont, I'll get into this a little bit more later, but while bail cannot be excessive. It also does not need to be affordable. Um, which is sort of a, an odd concept to reconcile, but it's, it's what the case law says. And so. And we'll get into this that part of Vermont's bail analysis is consideration of an individual's financial means, but the case law says that while bail cannot be excessive. It also doesn't necessarily need to be something that they can pay. It just can't be so outlandish that essentially no one would be able to pay it or it would be considered punitive. That's in years of case law and our statutes are drafted with that in mind. But ultimately, you know, it could be litigated again, where if a court were to set bail at an excessively high amount, that's something that I'm sure the defender general's office would take very seriously. That just doesn't happen. In Vermont, no, and it shouldn't happen elsewhere. Um, if I'm to be a risk for crime and bail is set. I see in the movies all this time. So, you know, bail bondsman and things like that. So like, what is that actually like? Okay, I need to post $1,000 bail. I can't come up with $1,000. Are there like people in the state to call that do this sort of thing like logistic? That's my that's my understanding. But my my understanding also is that bail limits and bail amounts in Vermont are typically low comparatively to other jurisdictions. And so engaging with a bail bondsman may be difficult because it's also business. Right. Right. Um, Well, before you go on there, it says a person's appearance in court and you were just talking about slight from prosecution. Listen. Can you explain why that now saying appearance in court as opposed to flight from prosecution? Well, this is just what the case law has said as far as what the sole constitutional legitimate purposes. Flight from prosecution is what. Our statutes reflect as the definition which includes this. Okay, so has it been litigated on whether light from prosecution is too broad or broader than just appearance in court and whether. I don't, I don't recall my instinct is that issue specifically has not been litigated as far as the terminology itself. I think it's typically what. Conduct has occurred and what is being set by the court and whether or not that can is really related to security or mitigating the risk of flight. So, again, bail cannot be used to punish the defendant or protect public, but conditions of release can be a mechanism of public protection and I'll get into that later. So, any questions about sort of these general concepts and touchstones related to pale conditions of release. Okay. So. Flight flight from prosecution. That's cross state border north left. I mean, it's, it's fact dependent. I mean, if someone were to leave the state. I'm sure that would weigh heavily towards a flight from prosecution result, but. It can, it's any action undertaken to avoid prosecution. So that could be a litany of things. And I'm sure people smarter than me can give you better examples of that, but it could be fleeing the state, but it may be more than that as well. I was just trying to get to the lower end there because if you don't know you post post bail and just don't show up. That doesn't does that constitute flight.  Yeah, I mean, yes, that could that could be used as, you know, factors of their, their avoiding the prosecution of the case. If they're not complying with conditions that can also be another one. And again, well, well, this is all sort of the basis of what we're getting into. So Kristen. On the flip side, what's the constitutional basis for holding someone without bail. I'll get it as well. There are there are 3 exceptions to hold people without bail. Constitutional exceptions. What resources, I know the judge said that what resources to hear she used to determine the number. Of the bail amount. Yeah. So 1 of the, so we'll get into this a little bit too, but it's based on available information at the time of arraignment. So, and those, those arraignments and bail hearings don't have the rules of evidence that apply. So basically anything can be submitted to the court to prove the conditions are to justify the conditions order show the person's financial status. And then the judge will balance a litany of factors. And, you know, I would suggest speaking to judge zoning when he testifies really about that analysis that a judge. It gets into a pretty subjective though. So, yeah, I mean, I suppose there is an element, a subjective element, but it is. You know, objectively, the same lifts of sand factors are brought to every individual, but every case is going to be fact specific. Answer. So, so then somebody the other day asked me this question and I did not know the answer when I said that Vermont Constitution limitations on bail they said, but the US Constitution is different in terms of what bail is like why doesn't that prompt the Vermont Constitution. So the Vermont Constitution creates greater protections than the federal Constitution does. So it's, it's not that it trumps it, it's just that it's build off of the baseline that the federal government federal Constitution that's created, which is the bail cannot be excessive. And if somebody's charged in federal court in Vermont, would they follow the Vermont Constitution or the federal. So you can be charged in federal court for state crimes. So, I think that's a question I would need to get. Okay. Yeah, I was like, I don't know the answer to any of these things. Okay. Yeah. Thank you. Okay. So constitutional requirements. It's like, share and it's new. So, this will just give you the text of the, the constitutional limitations. I'll break it down on a later slide, but it's in the Constitution chapter two, section 40. So that language, all persons shall be bailable is Vermont specific, which means everybody has the right to bail, or at least is presumed to be subject to bail, unless they fall into one of these three exceptions. So everybody can be released on bail. That is not the case in other jurisdictions, but the. No, go ahead. Well, I have a question about that. So that language there, would that prohibit the legislature from eliminating bail in its entirety? Or would that have to be a constitutional amendment? So, when you say eliminate bail, what is that could mean? I've heard that to mean a couple things. 1, eliminate cash bail. Or 1, make it so that bail isn't available so that everyone's incarcerated. Well, what's the right. So nobody's incarcerated and only conditions of release unless 1 of the exceptions for holding without bail. And I think that would be in line with the constitutional requirements because everybody would be released at that point. So this, this is to make sure that everybody is can be released as of right. They can't just be incarcerated. I didn't answer your question. Well, yeah, I don't think that answered the question. Because some people want to get rid of bail. They want to get rid of cash bail. Yes. Can we do that under our state constitution? You could get rid of cash bail. You could not make bail cash only though that has been adjudicated by the Vermont Supreme Court as being unconstitutional. It cannot be solely based off of. You cannot have people. Post bail through cash on. All right. So, but you could eliminate cash only. All right, but that would mean you'd still have the 30s and the bonds and all those right? Depending.  So does that run into problem with that language? I don't believe so. Okay. Not that that's what this bill does. You may have differing opinions.  But based on what I've seen so far. I don't feel that that would be a constitutional issue. So if we did do away with cash bail. Could folks be detained and help. In a correctional facility. It's right now. Right now we have detainees that can't make bail. Right. Or they're held without bail. Would they still be able to be held without bail? Yes. Those that. But they're, but it's subject to the constitutional limitations and the very high bar. That the courts that need to be met in order to hold somebody without bail. And that's current. Yes. Because we have quite a few folks who are detained. In our correctional facilities that are held without bail. And that, and that's again, goes back to everybody is bailable subject to bail. But whether or not you actually post bail is a different story. So these are the 3 exceptions. 1. Someone accused of an offense punishable by death or life imprisonment. It's only life imprisonment now because there are no offenses punishable by death in Vermont. And I'll get into. And. The house judiciary has already had a kind of. Primer on this through the walkthrough best 196. We'll be getting back to that slide in a few moments. And the 2nd is basically violent felonies. If someone is accused of a violent felony, there is a standard that needs to be met to hold them without bail. I'll get into this is in subdivision 2 here. I'll get into the details of that momentarily. And then the 3rd exception is someone who's awaiting sentence or sentence. Appeal maybe held basically someone that's already been adjudicated guilty. Whether either waiting to be sentenced or they're appealing to the judge. A person held with held without bail prior to trial shall be entitled to review that determination by a panel of Supreme Court justices within 7 days. That's also codified in statute. And then. Basically in cases where they're where someone is charged with a violent felony, and they are held without bail. The trial needs to be held within 60 days of that of that time. So that kicks in sort of the speedy trial. Concept. Where. Okay. And again, it's balancing that consideration of your innocent until proven guilty with. You've met a very high standard about public protection, public safety, and I'll get into that analysis, but that's the general concept. If we're going to hold you without bail for. Allegedly committing a violent felony. We're going to hold your, your, your, your trial within 60 days. If for some reason that trial cannot occur within 60 days, then that person is set for another bail hearing to reassess that hold without bail determination. Barbara and then. So then I have 2 questions. One is. For the exception of a person awaiting sentence. Sentence for what anything. Well, yeah. I mean, a misdemeanor. Probably not. But, and I'd have to get into the case law a little bit about that, but. That is 1 of the exceptions is just. And again, it's because of the general concept. You've been adjudicated guilty of that point at that point. So there is more justification to hold you until your sentence actually is. You know, that might be a better question for, for Judge Doney as well to, to get his perspective on. The other question I have. You may refer me to. Yes. But I recently heard. From a defense attorney about somebody who was. In jail pre pre. For trial on. Attempted murder and they were in for like 2 years. So how does that. How does that happen? I would need to know that. I would need to know the specifics of the case to really answer that. I don't know. So, so I guess I'm wondering if. Court backlog is. A reason that. We might not. I don't know if court backlog would be a justification. I mean, it may have been if they were held for a violent felon. And they pose a threat to the public. That it's possible that whenever that bail hearing was set at 60 days, that they kept meeting that standard. So that's a possibility, but it's, it's hard for me to say. Also, defense counsel can ask for extensions of time as well. Right. Yeah. So that's 60 day. There can be waivers. So that's a possibility. We can ask for extensions of time as well. Right. Yeah. So that's 60 day. There can be waivers of, of that made by the defense. So, basically it's their choice. So my question was. Related to, to represent Rachelsons question, is could, could there be. Um, multiple. You mentioned that if the trial does not commence within 60 days, someone's being held, the trial does not commence, there's a hearing to revisit the bail question. Would there be just every 60 days, a hearing and then over and over to determine? I'm not sure. I think that's a better question for judging. But there's nothing in the Constitution that would prevent that from happening. Not that I recall, but I'm going to qualify that statement that I need to look into it a little bit more. Now that I'm thinking about what representative Regelson asked, it may have been that there was a waiver by the defense. That to me seems like a more likely scenario. But yeah, I would ask you a question. Thank you. Sure. Any other questions before we get into more details? Then finally, no one can be imprisoned for that. But this point, so free trial release statutory foundations. These are found in section 7554 and others.  Shall at his or her appearance before a judicial officer be ordered released in accordance with this section. So that is that constitutional requirement that everyone is available codified. We'll also see in 7554A1 that the defendant shall be ordered released on personal or cognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer unless the judicial officer determines that such a release will not reasonably mitigate the risk of flight from prosecution as required. So this again just sets the stage of releasing people and has the judge gives the judge that discretion to determine that unless the judge determines that releasing them doesn't mitigate the risk of flight. So again, statutory foundations will get into more details as we go. Thank you for this and I'm hearing the emphasis that everybody is bailable and this is specific to Vermont, though. Do you have a sense of how special, unique it like for me? I'm like, oh, this makes sense. But are we kind of isolated or I haven't done a survey of states. But this is unique to Vermont's constitution and maybe I believe that there are other states that have similar provisions. But it is not ubiquitous throughout the country. OK, so I feel like that's helpful because we might hear stories or hear things and to know that we're on a different foundation than what might be happening somewhere else. No, don't quote me on this. And so I may be stepping in a little bit. But I believe, for instance, North Dakota might have a similar provision because the Senate Judiciary Committee looked at some North Dakota pretrial release supervision programs. And I remember reading some material nodding to the fact that they're in a similar situation as Vermont that you can't just incarcerate people unless it's for a really good reason. So just on that issue, just I know folks may have heard that Illinois has eliminated cash bail, but they have different requirements, different constitutional requirements and they can actually detain people from public safety, as my understanding. They have risk assessments to consider whether to detain somebody for that purpose, as opposed to the flight from prosecution. So if folks do hear that certain places have gotten rid of cash bail, I think New Jersey has as well, there's often more to the story and people may still be detained just for public. And that does remind me, too, that former U.S. Attorney Christina Nolan did testify in Senate Judiciary. And I think it goes back to Representative Nolan, or maybe Representative Rachel Sun about in federal court that she testified to the fact that they're kind of going to some in a position where they can't involve someone for public protection purposes. So I think that answers your questions that it doesn't necessarily apply to the federal courts, Representative Rachel Sun. So again, that's why you may be hearing differing accounts as to what's happening in one place compared to another. Or in one court within Vermont compared to another. Any other questions on the slide? What? So the scope and limitations of bail. So bail may be used only to assure the defendant's appearance in court and cannot be used as a means of punishing the defendant nor of protecting the public. This is in state v. Pratt and also in other Vermont Supreme Court cases. The bail statutes created presumption in favor of pretrial release. So again, everybody being bailed out with the courts required to impose the least restrictive conditions of release unless the defendant is determined to be a flight risk. So again, even if someone won their release and if conditions are then imposed, which is different than personal recognizance, you can be released under personal recognizance where you don't have any conditions imposed on you. But when conditions are, our statute says it must be the least restrictive condition or set of conditions. So even within that, there's that sort of nod to innocent before proven guilty that we're not going to impose unduly harsh conditions on you that are unnecessary. Barbara. Right. I'm sorry. So if somebody misses their court date, would they then possibly be held because they missed their court date after? It's possible. I would say it's probably unlikely for a single missed court date. You know, there are a lot of factors that could go go into that if they if they miss it due to car trouble or something. And if there is an attorney there, I mean, in my own personal experience, when someone would miss, there wouldn't be a, you know, a direct punishment. It's possible. But like I said, I think it's unlikely in practice. So situations in which bail, secured appearance of bonds or appearance gone bonds cannot be imposed at the initial appearance for misdemeanors if the person is cited for the offense at the initial appearance or upon the temporary release pursuant to rule five of the criminal procedure rules, which I'll get into later for a misdemeanor eligible for expungement. So eligible miss expungible misdemeanors, unless the court determines that imposing bail is to mitigate the risk of flight from prosecution. And in that case, there is a $200 cap on the bail that can be imposed. So for expungible misdemeanors, if the court decides there's person might be a flight risk, they can set bail, but it's capped at $200. Because in the policy reasons there, probably because they're not to say that there aren't any serious crimes, but for crimes that aren't considered as serious. This is sort of the policy decision that was made, is that the presumption is that you're not going to have a monetary amount. But if it is imposed because there's a flight risk, it's only capped. It's capped at $200. This is interesting. And I just feel like flagging this because it connects to the ceiling bill that we put. Like, what is what is that connection? Because we move, generally moving to ceiling. This now says expungement. I'm wondering if that word change matters or probably. Yeah, this is also a provision that is affected by S195 as well. Wait, let me go through the bill. $200, I can't imagine that that would. Really impede anybody that wanted to really believe. How long has that been on the books? I want to say 2017. You ever take a year? 18. Angela. 2018. That's representative Oliver. I passed in 17 and enacted in 18. Do you know, Ben, if this is the only. Example of a bail amount being capped or prescribed, I believe so. And then finally, the constitutional exceptions for bail are governed by 75, 53 and 75, 58. And we'll get into those right now. So the house judiciary committee probably remembers this slide because it was handed out with our walkthrough of S196. So bear with me if this is repetitive. And for house corrections, welcome to being held without bail. We have a lot of people being held about that. Well, so what I think there's a question there about, are they being held without bail? Are they being held because they cannot post bail held without bail? We have data from the agency that was sent to us about all the folks who are currently being held. The majority of folks. 90% of them, I would say, quickly going through this are being held without bail and the maximum bail amount. We just went through this, right? It was 9 million. Yeah, it was 9 million maximum bail amount. 9 million, yeah. Right? Well, was that the highest one that was set? Jeez. That's what they list. It was 9,999,999,999,999. It's 9,999,999,999 held without bail. Maximum bail. And this was sent from DOC yesterday and it takes it goes across all the facilities. Okay. So about just quickly looking at that, I would say probably about 90%. I would say 90% of the current folks being held. In our incarcerated facilities as detainees are held without bail. I don't know if I'm off base, but yeah, in that document, I'm having Kayla post it so folks can see that place. So Wayne, then Kevin. No, my understanding is, and I heard two different numbers that we have an awful lot of people that cases have not heard a 1700 or 17,000 number of people that haven't made it to a court decision. The backlog, you mean? The backlog? It was like 16, 7. 16. 1600. 616. So now the team doctor breaks the whole document. But they're not held there. They're not, I know they're not held, but I also heard a lot of the, or a good number, and I'd like to know how many of those didn't show up. So my question is, of those that might be out there that have never showed up, $200 fine, or $200 bail. So see what I mean? So the question is, what proportion of these folks are people that, on that backlog, that haven't showed up for their trial? And just a couple of things, the 16,000 cases that could be, it's probably quite a bit fewer individuals, because they can have multiple cases. And I don't know that they track, actually, that I know of data of no shows or not, but I know Ben has a comment on it. So something that is towards the end of the presentation, but I think it's an important distinction for the committees to understand is that, so there's the whole without bail statutes, which basically is governed by what the person is charged with, either an offence punishable life by life imprisonment or a violent felony. But then there's bail revocation, which is a different concept. And so I think that you're referring to bail revocation, that if somebody didn't show up, there's a separate procedure to actually revoke their bail, which again is a very high standard. So I would kind of caution to think that a lot of people are being incarcerated because bail is revoked. I mean, I do know that it's a tool that has been used, but it is a really high bar to meet. So just I wanted to distinguish between those two concepts that these persons held without bail is really dictated by the offence that's charged and the evidence that is available at the time to support the underlying facts. Bail revocation is really if someone has, there are five different bases, but for instance, if someone has essentially tried to avoid prosecution altogether, and that's a situation where a bail revocation procedure can be undertaken. So I was thinking flip side that they're not being held, that they're out there, they've never been apprehended. And we don't have enough people to go out there looking for them. I just wondering how many of those exist that haven't been apprehended, but they're in that total number there. So presumably, and we'll be getting into that perhaps, that if somebody doesn't show up, there can be a warrant for their arrest, that's probably data that could be obtained. There's also someone there can be a prosecution initiated for contempt of court. That's right now, probably the first like a VCR violation condition release. That's the prosecution. So it's really the main enforcement mechanism. And right now Vermont does not have any pre trial supervision of people who are released. The only accountability is if you get somebody back in front of a judge, which S195 attempts to address. So Ken, then Tom Elder. So I think what I heard 17,000 people are being held without bail. And that no, no, the backlog in the courts doesn't end up being held in our correctional facilities. 380 people are detained as of yesterday from this data. What was, so how many people are being held without bail because of bad crimes? Well, the data, which I sent to Martin, a member of my committee received this yesterday. And if you just thumb through it really quick, I would say about 90% of detainee population right now is being held without bail. And the bulk of those are felony crimes. And 90% of what number? 300. No. What number? I got a correction on it. About 400 detainees. 425 as of this morning. It's 425, but that includes the federal detainees, right? That's total state detainee. Yeah, so it might be less than. Primary federal, no, 67 federal detainee. On top of the 425, okay. So 425. So there's around 200 people are being held without bail? At least. Going down. If you thumb through this, I can tell you. Yeah, I just. Tom, Oliver. Maybe just a little real life data. This is what I do. So we're holding fewer people on bail. So then you would, it would be only natural that the people we have in jail are held without bail. So that is going to be our greatest number. We are have the number of warrant arrests has exponentially grown out of control. It was never like that before. We arrest people all the time who don't show up for court. They repetitively do it. But they typically get re-released without answers. Anybody's questions because of the bail loss. I just follow up question for representative Oliver. If you'll be interrogated. Tom, I was sort of wondering if you could just expand on that last piece you said. So like if you were to arrest someone on warrant for failure, you know, to appear, you know, with bail. Are they then brought before a judge and then do they have the hearing that they missed? Or are they given a slap on the wrist? Is there more bail at that point? What what happens when you actually get them there? Right. So there's been some new developments in the bail laws. Well, we think they're handled because of the bail out. Sometimes if the crime is something that is $200 or lower in that, you know, that window, sometimes somebody will be arrested and it'll have some indication on the warrant that they can only be arrested during the day. And that's because they put them before a judge immediately. Because during the day during the week, it's a weekday only warrant. So that they can get them before a judicial officer. Then there they go over the circumstances and tell them, you know, they adjust the conditions of release if they need to. But most likely we're going to see that person again in the same situation very frequently over and over. And then you'll have others that they are over that expungible mark. They can't really set bail on. They can set marginal bail or whatever. But they try not to set bail most of the time. And they do everything through conditions of release. And that's why you're not seeing people held, you know, on bail in jail for a lengthy periods of time. Really, other than hold without bail. Does that make some sense? And then if you have a warrant that is above that expungible mark on a restaurant, you will see people get arrested on. Say I get caught in a disturbance or something or a police officer stops me on a Friday night and I have a bail warrant that's $1,000 or something. If I don't have that $1,000, I will go to jail until Monday morning. And that's kind of how all warrants used to happen. Warrants, if I arrested you, it didn't matter if it was below that expungible mark or that $200 window. If I had a warrant, I had to come up with whatever the financial certificate was on the warrant to get out of jail until Monday when I saw the judicial officer or the first opportunity a judicial officer was on the bench. If we arrest somebody like that during the day, during the week, then obviously they go straight to court. But if the court's not open, they went to jail or they came up with the money or used a bail bondsman. A bail bondsman is still active, just not very much. You have to pay 10% to the bail bondsman for him to front the money. And when you have warrants that are $200, they don't make anything, or $1,000 for that matter. I mean, they don't want to risk $1,400. Great. Thank you. All right. So just to kind of focus back on, we're just going over persons held without bail, those two statutes, 7553 and 7553A. What you see on the screen right now are those three constitutional exceptions, providing the basis to hold people without bail. So, life imprisonment, 13 VSAs, 7553. These are the elements of the statute. So the crime charge is a maximum potential sentence of life imprisonment when evidence of guilt is great. That has been flushed out in the case law. There is a presumption of detention under this statute if that guilt is great standard is achieved. And then if evidence is not great, the court maintains discretion to release a defendant pursuant to the 13 VSA 7554. That statute has sort of been half seriously referred to as sort of the bail bible, because that statute contains all the different conditions that can be imposed, the analysis that the court does. So that statute outlines the court's discretion when they release somebody and what they can impose on them and what factors can be considered in analyzing which conditions should be imposed. Then there's 13 VSA 7553A, which is the violent felony exception. So someone who is charged with a felony, an element of which involves an act of violence against another, where the evidence of guilt is great and clear and convincing evidence shows that release poses a substantial threat of violence to any person and no condition or combination of conditions will reasonably prevent the physical violence. So in both of these statutes, there's that guilt is great standard, right? And these both include sort of a two prong analysis. So for that guilt is great standard, that is shown where the prosecution must show that substantial admissible evidence exists to show that evidence of that guilt is great. So what does that actually mean? They don't actually have to admit that evidence at that time. They just have to show to the court that it exists and that can be done through sworn affidavits, recordings, it can also be done through live testimony, but you'll hear through a lot of future testimony, there are a lot of reasons why you may not want live testimony. So for instance, in a violent felony, potentially like an aggravated domestic assault case, typically these bail hearings are going to be held within two weeks of the alleged incident or arrest, and that is a very short time to force a victim to testify live in court and face the alleged perpetrator. So there are reasons, and there's also the other reason where you don't want to have a bunch of mini trials before the real trial. And so that's why they say there are other ways that you can show this evidence exists other than through admissible evidence, but you have to show it exists. Once that standard is met for the guilt is great standard, then you get into the 7554 standard for life imprisonment, which is the rules of evidence don't apply. You can kind of submit anything through without adhering to the rules of evidence, but you need to present evidence. And then 7553, there is essentially a court split on how once the evidence of guilt is great standard is met, how you prove through clear and convincing evidence that there's a threat of physical violence and that no conditions of release will result in your protective public. Some courts think that the rules of evidence apply, and that you need to have that substantial admissible evidence shown to exist. Some courts think that the rules of evidence don't apply and that you could kind of present anything you need, but just you don't have to adhere to the rules of evidence to get admitted. S196 attempts to address that issue with 7553 to put it on par with 7553, 7553A to put it on par with 7553. But that's really an issue before the Senate Judiciary, or House Judiciary Committee, it's out of the Senate Judiciary Committee. But just to kind of give both committees an idea of really the mechanics of how these statutes are practiced. Sure, there are questions. Sashed. Thinking deeply on this one. I can move ahead while... Yeah, go ahead. Deeply. Oh, and then this goes again to the 60-day trial requirement for the violent felony and that it can be there can be a waiver. And if there's no waiver in the trial, it doesn't commence within 60 days of the hearing. It's set. Question. Yeah, go ahead. Can you describe the defense waiver? They would basically make a motion in the court saying that we waive the 60-day trial requirement. Why would they do that? Maybe they want more time together, exculpatory evidence. But that would be a good question for the defender general's office as well. They can give you more specifics. Any other questions? Pail and risk of flight. So how is someone determined to be a risk of flight from prosecution? So the court must consider, in addition to any other factors, two things at the outset. Shoot, I do have a question for the last one. On the last one? Go ahead, Angel. I'll ask Judge Jonay. I'll start right it down. Yeah, well, okay. I'm asking, I wonder. I don't want to trump a judge. I'm thinking back to these. So for the violent felony 7553A, all five elements have to be present or satisfied or whatever. But there are different standards for those elements. Okay. So the guilt is great standard is kind of that substantial miscellaneous evidence. And then there's the second prog for the families for the violent felony, convincing evidence. Right. And when I'm actually looking at number five, no combination, no condition or combination of conditions will reasonably prevent the physical violence. Is that typically that that determination is really just judges discretion? Right. So but in practice, the way this would, and I believe that there was testimony on this in Senate, the way that this would play out is that someone would be arraigned. There would be conditions set at that point. So for instance, using the like sort of domestic violence example, don't have contact with the alleged victim. If within the 14 days of those conditions being set and this holds up and this way to the evidence hearing, these are known, being held, if that condition was violated, that might show to the judge that really there's no set of conditions that can be public. Because if you're if you're restricting them, contacting that victim and in that two week period of time, they've contacted the victim, that that's evidence to show that the condition may not be effective. Okay. So there there does need to be evidence. It's just introduction. That doesn't mention evidence. It just says no condition or combination. Also it's it's and it's because you really have to get into the case on it and there is a little bit of a dispute about where the substantial admissible evidence prong ends and where sort of the non evidentiary stuff begins. Some and myself included based on the case law that I've read is that starting with condition four here, that's where the non admissible evidence standard begins. Okay. There's I know the defender general's office has said that that's incorrect and that but I haven't been able to discern what their true position is yet. I think that's something that will come out in later testimony. But by and large to answer your question is that there is evidence that is presented. It's just sort of the issues are what's the standard or what's you know or does it have does it have to adhere to the rules of evidence to become to be admitted. But yes, there does need to be evidence. It's kind of an abstract concept. Thank you. Bail on risk of flight. So how someone determined to be a risk of flight courts consider at the outset few factors in addition to anything else that the court means relevant seriousness of the offense charge and the number of offenses with which the defendant is charged that the court determines that a person is a risk of float based off of those. It must crap the least restrictive conditions of release and must consider on the basis of available information. The nature and circumstances of the offense, the weight of the evidence, the person's employment, the person's financial means including the ability to post bail, their character and mental condition, their length of residence in the community and record flight to avoid prosecution or failure to appear at court. So these are all considerations that the court considers in imposing what conditions should be ordered. Troy, I'm just. Is this they have to consider all of these bullet points? Is that accurate? It's within their discretion discretion. So whichever ones are relevant, but yes, they can consider all of them and they can consider sort of other factors based on the available information to them. Just looking at length of residence in the community and especially as the conversations evolve around all these conversations impact our migrant community. But that's not a requirement. Well, these these are these are the things that it must consider. So it is a requirement, but there's sort of discretion as to which which is applicable given the you know the limiting factors because each person is fact specific. So yeah, a person's migrant status, maybe they don't they haven't lived in the the community for a long time. So that could weigh one way or the other, but it could also be outweighed by the fact that they're here for to be employed. So that's another factor that's considered that we're probably in favor of you know release and the conditions that would be imposed. And traditionally, you know, I remember even going back to law school, I mean sort of the that was the sort of recitation that you guys give at a failure is that this person's not a risk of flight. They have family here. They've lived here for 20 years. They've been gainfully employed for the last 10, you know, they you don't need to really restrict their movement. You know, you don't need to impose curfew. Don't need to impose a no contact or that they can't go to a certain place. So, you know, those those are kind of in practice how it might be discussed. Did they look at priors? So that could be the short answer is that it's non explicit condition. But it might be involved in this last factor, which is if they've been charged in the past, if they appeared in court, if they had instances where they tried to avoid prosecution. So there could be and that's something that can be known made known to the court that might end up inherently factor in. But that's also something that's addressing this 195. Tom Oliver. Regarding Representative Hedrick's question, a little insight maybe the police also have to do the same thing with our rules of arrest as far as screening people as you know their ability to apply or appear whether or not we release them on a citation or we have to bring them to jail or do something like that. But where the where the line was drawn most of the time for us pretty significantly is when someone's from another state. So whether they were from another state or from another country, I think they'll be pretty much equal. Is that help maybe? I think so. Yeah, thank you. And just to close the loop on Representative Harrison, your question, you know, I do I do know that, you know, in it says in addition to any other factors, so that does give the court the discretion to consider things outside of what's enumerated. And I believe Judge Zona, it's testified in the past that when you're talking about the nature and circumstances of the offense, it could include sort of priors if they're sort of related to what currently had gone on. So there is a basis to do it. It's just not necessarily explicit. All right. Okay. So moving on to just bail and conditions of release and conditions of release related to bail. So it's a really a two part analysis where you have conditions that are related to bail to secure someone's appearance. And then if those conditions are deemed insufficient to also protect the public, then additional conditions can be imposed for that public protection thing. So it's sort of that two factor analysis there. So the conditions of release that related to bail that can be imposed are placing somebody in the custody of a designated person or organization that's basically agreeing that the person's going to comply with their conditions and can also be held responsible. If the person that they're responsible for is non-compliant, you can place restrictions on travel or association during their period of release. You can require participation in alcohol or drug treatment program and consideration is given to someone's ability to comply with an order of treatment and availability of resources. So if there aren't available providers, that's something that would probably be considered in whether to impose such a condition. Someone's financial means are considered. So upon consideration of those, you could require the execution of a secured appearance bond and cash or other security of a sum not to exceed that percent. That deposit is returned to the defendant when required. Upon consideration of those financial means require an execution of a security bond with sufficient solvent secure sureties or cash. So basically just a surety bond, but that would be liquid to an extent. Any other condition reasonably necessary to mitigate the risk of flight from prosecution, including requiring the defendant to return to custody at a specific hour. And there can be a no contact condition for having contact or harassment of a victim or witness, which takes an effect immediately regardless of incarceration or release. So those are the ones related to bail. And then there's public condition, public protection and conditions of which are largely the same couple small difference. I'm just curious. So the ones that we just went through. So some sort of bail needs to be set, you know, if it's a dollar in order to get to these conditions of release or can conditions of release be set without bail. Cash or surety bail. Well, I think it's ultimately up to the judge where, you know, and this is sort of where the terminology kind of, it's the bails defined very specifically, but bail is largely thought of as sort of this broader concept. So I can envision a situation where, you know, maybe a bail amount isn't necessarily imposed but conditions of release are, but I think that would be rare just because the first primary purpose of bail itself is to secure someone's appearance. And a lot of those conditions are really related to achieving that objective. And so then are the protection of the public conditions or do you have to have bail and bail conditions to get to public protection conditions or can you do public protection convictions without conditions without cash and or conditions? Well, so the the statute is a little confusing in how it's structured. And I think that you, you know, I would refer to Judge Zoni sort of on his view of this because he will find on this a lot where I think in reality a lot of judges make sort of do it all sort of wholesale. But the way the statute kind of reads is that you do the bail analysis first and you impose conditions and if those conditions are insufficient to protect the public, then you can consider additional conditions. So I don't know that doesn't really answer your question, but maybe ask Judge Zoni. Thanks, it's a good answer. The public protection and conditions of release. So these are the conditions that are associated with public protection specifically. So as I stated, if the court determines that conditions related to bail will not reasonably protect the public, then they impose the least restrictive condition or set of conditions on top of those. So it's based on available information. The court takes into account similar factors and what it did for bail, nature and circumstances of the offense, what are the evidence, family ties, employment, character and mental condition. Recent history of violence may be considered on bearing on someone's character or mental condition, their length of residence and community, record of convictions. So and again, when it's sort of blended together, sometimes that's rolled in or their record of appearance, flight to avoid prosecution or failure to appear at court. So those are the factors that go into the public protection analysis and then the conditions of release related to public protection are largely the same except when you look at the second condition here, you can also place restrictions on someone's association or place of abode during that period of release. And then you could also suspend a law enforcement officer's duty if the law enforcement officer is charged with embezzlement in an official capacity and it's deemed necessary to protect the public and then any other condition reasonably necessary to mitigate the risk of flight and then there can also be that no contact condition. So largely similar with a couple differences. Any question on those conditions? See? Getting to the real ribbiting part, home detention. So this is governed by 13 VSA 7554B. And home detention right now it's a program of confinement and supervision that restricts and defend it to a pre-approved residence continuously except for authorized absences for court appearances, medical appointments, and the like. A defendant who is detained at a correctional facility for more than 7 days for lack of bail, so in a situation where they've been bail, they've, bail has been set, they just were not able to pay it. They may be reviewed by the court and determine whether they are appropriate for home detention. And so anybody essentially can request that review the department, the court or the defendant. And then prior to scheduling the review, the department of corrections files an assessment of the proposed residence to see if it's suitable for electronic monitoring. And it's usually deemed suitable if they have cell service or a landline because that's really sort of the connection for lack of a better term. And then continue. The word may is in there who determine curious the benefit of a 7 days may be reviewed right because it's dependent on a request I request by whole the difficult court, the department or the defendant. For my committee, if you remember last year, we did a little bit of work on this because the requests were not being made. We worked with judge, judge Sony to really work with the judges that they start paying attention and they themselves, the judges could make that request. And we worked with the judge on that. We'll be working to work on home detention on S195. Pay attention. Dependents aren't making the request for that, they're just in jail. They can. Dependents council may not want them to make that request. Or they may not want to make that request for who knows what or they may not be. We'll get into sort of what goes into assessment, but part of it is again I keep coming back to a domestic violence example. But if someone is held, you know, was charged with such a crime and the victim lives at the home, the defense council may be like, we're just not even going to go into this process. It says it's really individual specific. Yeah. That word may I would interpret that to mean that the court could decide not to. Yeah. Now they can decide that it's not appropriate. It's the court that makes decision on home detention. But they have to be requested by the department of corrections for the defendant or themselves, the court. See, I understand that, but it says may be reviewed by the court. So the court is not required to review that request. I mean, that's my paraphrasing. So I wouldn't get to but it's really in the way it's phrased that way is because it's dependent on an actual request. You know, they don't just get an automatic review if they've been held for seven days. Of course, my thinking is thinking that that was actually the way the law was written is that the court may not take the request or may just not want to review it because it's only a review. They have the ability for the court to review it, but the court in this case could choose not to review it. I mean, I'd have to double check the statute itself. I don't believe it could be exactly the same wording. You see what I mean? I do, but I don't believe that's how it works in practice. So going into the analysis of home detention. So in determining whether someone is appropriate, the court considers the nature of the offense, their prior convictions, history of violence, medical mental health needs, history supervision and risk of flight and any risk or undue burden, persons residing at the proposed evidence, risk to third parties or risk to safety that may result from such a placement. So that public safety element is a factor in determining whether home detention is appropriate. DOC can revoke home detention status for any for an unauthorized absence or failure to comply with any other condition of the program and to return them to a correctional facility. So right now, DOC has the discretion to do that. And then the defendant does get credit for time served while they're participating in the program. Any review of that DOC revocation is that something has to go before a judge or they just decide? I'm not sure, but I'm pretty sure it's it can be just decided because they would otherwise be incarcerated with the DOC program. And it's DOC that right now it's DOC that supervises folks who are on home detention. So they would have the authority to revoke. Fail revocation. The other concept. So this is dictated by 7575 of Title 13. So the right to revoke may be revoked if the court finds that the accused has done one of five things. Intimidated or harassed a victim, potential witness, juror, or judicial officer in violation of a condition of release. In a manner that impedes the prosecution of the accused. But the courts have said through multiple court cases that violations alone are insufficient. And there must be a nexus between those repeated violations and a disruption of the prosecution. So that it really impedes the ability to prosecute the crime. And that can be something like witness tampering. What the court has said, if you're trying to influence a witness or mother to participate or not, that can disrupt the prosecution. But you would notice though that case law says disruption of the prosecution. The statute says impedes the prosecution. There's a little bit of an academic exercise of what's the difference between disruption and impediment. And you can make the argument that an impediment is yeah. So just a fun little nugget there to consider as you contemplate everything about bail. I did it for representative. So moving on. Another basis for this is if they violated a condition or conditions released that constitute a threat to the integrity of the judicial system. The court have spoken that only one facts indicate a palpable threat to the integrity of the judicial process, like preventing destruction of evidence or endangering or threatening witness would rise to the level of that. So again, there's always more than just what the statute reads on its face. I always got to look at the case law for this. And then another basis is without just cause, a person failed to appear at a specified time and place ordered by the judicial officer. But again, it's not written into the statute, but there needs to be sort of that nexus element and there needs to be that higher standard because the right to bail is a constitutional right to revoke it. It has to be a very good reason to do so. And then finally in violation of condition release, someone's been charged with a felony or a crime against a person or defense similar to the underlying crime through which after hearing probable cause is found. So those are the bases and you will see that S195 built out the statute to really incorporate the case law so that it is a little bit clear to those who read about what's required to revoke bail. Any other questions? Go ahead. Is there any stats on the last paragraph? Any stats on that about how many times that happens? I'm not sure. I'm sure that there are. I don't know what they are. So we're going to have to check it. Okay. We're going to try to get a question. No, sir. Seeing ghosts of hands. It was it was kind of so in conclusion. What does all this mean? Right. Everyone is subject to bail as a matter of right. Unless one of the three constitutional exceptions is that bail amounts cannot be excessive but do not need to be affordable. It is presumed that everybody's subject to bail must be released on personal or cognizance or an unsecured appearance unless the release will not reasonably mitigate the risk of flight. Conditions of release can be tied to both bail and public protection and must be crafted in a least restrictive way. And then the right to bail can be revoked in legitimate and compelling circumstances. A very high bar. Did you put that all together? Why do you ask? Just a little intrigue. Yes. Good job. I'm paying him a compliment. I don't know about that. So we're next going to do a walkthrough but let's take a five minute stretch break first. And we can go off live. We're back in the joint hearing with the House Judiciary Committee and the House Fractions and Institutions Committee. And we're now going to have a walkthrough of S195. I believe everybody has received a copy of it or went online. So back over to you, Ben. Thank you. Thank you again for the record. Before the committee is S195 entitled and act related to how a defendant's criminal record is considered in imposing condition release. Essentially this bill proposes to do four broad things. One, change the bail limits for certain crimes which is what I referenced before about removing a $200 cap for expunge women's cleaners. And the other thing is that there are two factors for the court to consider in imposing conditions release, most of which are already sort of implicitly considered by the court but have been codified to ensure consistency. Adding new monitoring programs that can be opposed as conditions for individuals who qualify. Those programs include the expansion of home detention, monitoring program and the creation of pretrial supervision. And then also to create and clarify accountability mechanisms for those who violate conditions of release. I previously referenced that a VCR violation of condition release can be as a prosecution that can currently be commenced. This creates another proceeding in addition to that to hold people accountable for violating conditions of release and then as I mentioned before, building out that bail revocation statute to incorporate the case law in statute. So, turning to the particulars of the bill. So section one amends 13 VSA 7551 which is the imposition of bail of parents bonds and sort of their associated limitations. The portion here that really changes is you'll see on page two starting on minestall P14 which is you'll read in subdivision two in the event that the court binds that imposing bail is necessary to mitigate the risk of flight from prosecution for a person charged with a violation of a misdemeanor offensive is available for expungement. The court may impose bail in a maximum of $200. This bill adds language that says the $200 limit shall not apply to an offense allegedly committed by a defendant who has been released on personal toxins or conditions of release pending trial for another offense. So basically if they're already charged with that expungeable misdemeanor and then they're charged with another crime that $200 cap doesn't have to apply in that instance. Right. Is that evidence of guilt is great standard part of this? No, they are not. No. So that could be a violation of condition of release. Is that correct? Is that can be the additional offense? So any condition to not commit a new crime, but it doesn't have to be. It's just if someone commits a new crime and they're already out on conditions that expungeable misdemeanor cap wouldn't apply in situations. Precisely that. But if they violate a condition of release that they stay out past their curfew or they have contact or anything like that, that's not an additional offense for which the bail wouldn't... That's not criminal conduct on the bill. Can I ask a question that backs us up before you dive into the bill? I'm realizing I don't know where this bill came and what the impetus is. I know there are all kinds of issues with bail and questions about bail. So let me answer that because that's not so much. Legislative council was asked to draft the bill. Yes. So prosecutors have wanted to address these issues. So it comes from prosecutors. You will note that we have three bills in our committee on our wall that were, I think, companion bills to what this bill ended up being. So those were introduced by some of our members. I think Tom Oliver for one. Tom has been particular about it. Well, in fact, Tom, if you want, this comes from you as much as anybody. If you want to just give a quick why are we doing this explanation. Yeah, I mean, I was in the senate as well, but I know that Tom Oliver has really been pushing for this. Are you with us still? He may have gone to get some cough here. Well, lucky him. I can hear from Tom later as well. We can get that from him. I'm here. Can you just give a quick statement of why we are doing this, Tom? Why this bill is important? I know that it started in the senate, but I know this was companion bill to some of the stuff that you have in your bill. Could you just give us a quick overview of a quick idea of why? Well, I think sort of looking at what you said this morning before and maybe the disparities that we're trying to fill. Maybe my goals might be different than others, but I think we're seeing an awful lot of people with smaller crimes on the streets reaffecting. And I look at conditions in Baylor very important tools to help maybe get we don't need to put people in jail right away, but we need to let their behavior dictate, I think where we're going to go with them. And it may be jail for short term to get them a little bit grounded and under control and get them back into a good place, even if it's a week or two in between incarceration and a bail review, maybe, and reassess where they're at. Something like that. I think releasing people on citations when we pick them up on a warrant at night because we can't bring them to a court or take them to jail and they just reaffirmed it's not working where I'm personally seeing it's affected my job greatly and it wasn't like this before 2018. I don't know what's changed and the only thing I can think of is what we've tweaked with the bail stuff before someone's behavior it wasn't unusual to see people for nonviolent felonies being held on bail and some or the harsher misdemeanors for periods of time and sometimes I think it was very beneficial. I wish there were more services in jail which there aren't I mean it looks like we're going to have maybe work crew back which I think is a serious bonus but it doesn't fix the problem where people are not really taking that step forward and wanting to get better and I think the only way we can do that if they're not doing it on their own is intervention and sometimes that has to start with some sort of incarceration until we have better services I don't know the answer I just know that we are having epic numbers of reoffense and that's not good. So I would also just add in the testimony we've taken on the retail theft bill on other bills that we've looked at this session a common refrain has been that conditions people are violating conditions there's a lot of repeat offenders etc I don't think that this bill necessarily is going to lead to more incarceration that may have been part of what Tom thinks is part of the answer but we're looking at some other supervision we'll get to we're looking at in-home detention we're looking at ways to kind of tighten the supervision of individuals who are on conditions that's what I guess when I started out is there's something in the middle there's a gap in there that we're missing or whatever and you know I'm certainly more is going to help at least a little but it could help a lot and unless we try we're not going to get anywhere Thanks Tom Thank you Back over to you Ben Yeah Joe I'm sitting here for a few minutes wrestling with why this sentence on page 2 lines 12 to 14 bothers me I still don't know exactly but I do have at least a question maybe to help myself figure it out so like the purpose of cash bail is to someone come back like that's it come to court don't avoid prosecution putting aside the question which I don't know why like this limit was put there in the first place I guess I'm sort of like trying to figure out if at some point the legislature decided misdemeanors are capped at 200 and that is sufficient in order to get someone back then why if they didn't otherwise violate their conditions of release or anything like that and happen to commit an expungible offense and I think that's something that we have to also change in this here's I think should say expunged or sealed considering the work that we've done in other in other areas like why the limit like wouldn't be there for that miss like why it would make a difference the only point is to get the person back in then why the fact that they happen to be out on personal recognizance would make the 200 not apply there it's probably more of a policy question you know I sort of I think I've answered my question but I guess I'm just throwing out that there seems to be an incogruity between this sentence on lines 12 to 14 and the stated purpose of cash fail the discussion I think what may or may not help is when you get to page 24 of the bill which changes somewhat the definition of flight from prosecution okay so if we consider them individuals violating their conditions of release particularly by committing additional crimes can that be defined as flight of flight from prosecution and the $200 is not in my view you know you can look at more and still a question I would have is that there's still the means test for determining what the appropriate bail because it should be something that they shouldn't be excessive still even if it's not $200 but is it more incentive to not have flight from prosecution in the broader definition of what flight from prosecution is is that about is that I think that could be one way to think of that Wayne so just I'm thinking so that $200 limit shall not apply which means that the court can give a higher limit the court could also decide that we're going to give them $200 they already have that they already have that I know but that's required right so with this it's taken off that limit for a new offense for that new offense it does not describe a $200 limit but the court could do anything it wants well so it doesn't have to impose $200 it just may impose bail which could be a maximum of $200 currently this would remove that limit for a new offense that is committed but they could make it higher they could still set bail and it could be more if this were to pass yeah but this would be you know yes it could be an access of the $200 but if they decided that $200 was enough they could apply $200 they'd have discretion there wouldn't be any prescriptions one way or the other for that specific circumstance and just for some context about the evolution of this bill I think it's helpful so there was also a companion bill in senate S287 which was sort of rolled in in part to S195 that that bill had some accountability measures that led to incarceration but due to some constitutional issues with that the mechanism was rolled in the additional new accountability proceeding was rolled into this bill but the sanctioned was changed from incarceration to essentially imposition of conditions for release and new program that's helpful so that's really the change to section one in section two this amend 7554 of title 13 which I previously referred to the bail bible this you'll notice some center neutral and terminology updates but really the big change regards the factors that are included in the court's analysis and then also the conditions that can be imposed so I'm going to start with the conditions in the first part of the analysis that we discussed so on the top of page five lines one four the electronic monitoring program and the home detention program are now conditions that can be imposed related to bail you'll see if you scroll down on to the next page those conditions are also added to the public protection factors in the second part of the analysis and then if you scroll down even further to page seven lines eight through thirteen so this subdivision is what's considered in those public protection considerations so right now it's adding to the current considerations of nature and circumstances of the offense and weight of the evidence accused the court can now consider the number of offenses with which the accused is charged whether the accused is subject to release on personal recognizance or subject to conditions related to protecting the public in another case pending before federal or state court whether the accused is subject to conditions related to protecting the public for probation, parole, furlough or another form of community supervision that can be compliant with any court orders these are new factors in addition to what's already considered there's been testimony saying are largely sort of implicit in the court's analysis but this makes it explicit in the statute that these would be considered in this part of the analysis across any questions about the addition of those factors not on those factors but just going this might be in testimony when you're talking about conditions that were added for bail and then for public protection the electronic monitoring and I think you shared this in your slides to the revival of electronic monitoring so was this a practice that was used and then it was removed and we can just have a little bit of the history which I know is probably controversial but it's probably helpful I will give my piece of knowledge and as a chair because you know when it comes to but basically I believe it was in 2017 it was the Windsor or Wyndham County Sheriff Wyndham County Sheriff had a pilot program of electronic monitoring that from all everything that I've heard was successful to a degree but it was just a pilot program that sunset it essentially and this is a revival of that and an imposition of it statewide so it never was implemented statewide and then well folks who are currently in home detention are on electronic monitoring that's administered through the Department of Corrections and it is a passive electronic monitoring it's not active so it's not real time after the fact but I think it was representable and you were asking about the electronic monitoring program itself because electronic monitoring is part of detention as well but this as an independent condition of release is something that's a new statewide wasn't there like an equipment issue or something it was we took care of that last year the Institutions Committee took care of that I feel like there was a price issue the price issue was because it was active we needed more correctional staff on staff over by going passive you didn't need as much staff and the other issue too that was playing in people needed a landline and very few people now have landlines so last year we allowed cell service moving on to section 3 because that really should be section 2 section 3 is the expansion of the home detention program so this amendments 7554 and if you scroll to page 11 this is really where the first substantive changes are made to the procedure so you now see that in addition to the court DOC and the defendant the prosecutors added to as one of the people that can request a review for the appropriateness of home detention because the eligibility has been expanded should now include a defendant who has allegedly violated conditions of release or personal recognizance not just those who are held for failing to post bail so it expands to those who have violated conditions as well so that's why the prosecutor can now make the request for the court to do eligibility determination essentially and you'll see further down on the page on lines 16 and 17 that the term assures his or her appearance in court when required has changed to mitigate the defendant's risk of flight that is just to keep it in line with the defined term this was probably just a scrivener error in the past that was not caught and without going back through the determination on page 12 subsection C is amended this is the failure to comply so we would follow that previously DOC had the discretion to recall someone's incarceration for a violation what this now does is that DOC may now report a defendant's unauthorized absence or failure to comply with the condition of the program to the prosecutor and the defendant provided that a defendant's failure to comply with any condition of the program for a reason other than fault on the part of the defendant shall not be reportable so essentially if someone you know couldn't make a medical appointment or their car died or there's some other extenuating circumstance that wouldn't count as something that would be violative to address a reportable a reported violation the prosecutor may initiate a review of conditions under the bail statute 7554 a violation of conditions proceeding pursuant to section 7554e that's that new proceeding that I explain that I'll get into in a bit a prosecution for contempt under section 7559 of this title as the current enforcement mechanism for a violation or a bail revocation hearing under section 755 so the change we're shifting the responsibility from DOC to the court DOC is still responsible for seeing these individuals but the court is ultimately the decider yes exactly we have a court problem already we have a court problem things not be able to get through the court this is going to make it worse it may there's testimony also that it may it could also help because what that testimony has said is that every time someone is brought to court that's another chance to confer and either negotiate a plea agreement or expedite resolution of the case so on the one hand yes it would in the court's docket if you will but on the other hand it may expedite resolution of the case I don't have an answer but I'm just wondering if what you're seeking to accomplish might be written into what DOC is required to do in these kind of cases what do you mean by that let's let me get back let me think about it a little more but I'm just wondering if there might be another remedy or another solution well the reason that this was discussed as being needed to change is because since you're changing the eligibility so it's being expanded from those that would otherwise be incarcerated if not for the home detention program this now includes other people now that wouldn't have that threat of incarceration that was violated or allegedly violated conditions so now you're talking about a more restrictive condition because think about it home detention next to imprisonment is probably the most restrictive condition that you can impose on someone so you really have to balance that through the court you can't give I think there would be constitutional issues if you gave DOC for discretion to revoke home detention for those individuals that would otherwise be out on bail so I think that there does there needs to be a process separate and apart from DOC's discretion in this instance Tom Oliver you're on mute I'm just trying to catch up a little bit distracted so you're looking to add home detention to the list of possible things to do for conditions of release is that a pretrial yes yes it's added to the list of conditions so I guess what would be the sanction ultimately we need something if they completely ignore home detention what are we going to do so those are enumerated on the four options are on page 12 okay 11 through 15 so there can either be another bail hearing where the court would assess someone based off of the conditions outlined in 75-54 there's the new proceeding that I'll get into there's intent proceeding or bail could be revoked pursuant to 75-75 altogether so those are the four accountability mechanisms if you will for an alleged violation so I'm just procedurally thinking home detention is going to be of incarceration but there's still going to be the ability to set bail yes you're going to have bail but they won't go to jail to go to home detention home detention started as a way to release pressure in our incarcerated setting in holding detainees so instead of holding them in a correctional facility they're being held at an appropriate home setting right I think I was in the very first hearing when it was done to be honest with you I'm just trying to are they going to still set bail in this circumstance that you're only going to be in home detention versus incarceration they could there's nothing that would restrict the imposition of bail if you're confined to home detention right so if somebody was confined to home detention versus incarceration I think it would be very beneficial that if we had a reasonable bail set they knew the consequence for ignoring their home detention and then they could have their bail rewrote if there's no consequence I feel we're just you know chasing a rabbit down the hall that's my concern and I hear you Representative Oliver and this these four procedures is that accountability that consequence for violation of home detention okay so it can be imposed as a condition of release if you're suitable yeah if you violate then these four mechanisms can hold you accountable for that violation okay good I haven't read that yet I'm jumping in later so that's okay thank you I appreciate it thank you um going forward um you'll see an addition of subsection E at the top of page 13 which outlines program support that the department may support the operation of the program itself through grants of financial assistance or contracts or services with any public or non-profit entity that meets the department's requirements so basically they can contract out if they don't have the staffing to operate the program itself okay get back to where we were it's not going to go where we're to the violation where you're going to imply portion because someone's imprisoned and they violate what they're you know if they do violations inside the prison they do things wrong inside the prison you'll see has the ability to take action right because they're under the custody of the department these are under the custody of the department also no no they're under the supervision like it's they're the like so it's not it wouldn't be custody per se um a sentence yet there yeah well these are not sent to oh no no so this is pre-trial so everything here is pre-trial before sentencing so while do so DOC is the entity that's being used to supervise these individuals but they're not under the custody of the department at that point I was thinking I was thinking that there's a sentence I was on the wrong track Karen this is not regarding what lunch council is sharing but just curious what the path is going to be for this bill what well we're working on it in what sense what committee because I was just looking at it I was like oh what committee is it going to go to us but we're going to work on the DOC parts we're actually going to take jurisdiction or not hopefully not but we'll work it out it might be like just tell me where I need to go and what we'll tell you where you need to go and speaking of that we've got an amendment to one of our bills on the floor this afternoon so about quarter of 12 we're going to have to scoot out we'll finish up my clerks all even if we have to come back to it so we finish home detention with that program addition of program support section four is the addition of that new proceeding to hold people accountable so basically the court may determine that a condition of release was violated upon notice and a hearing to the defendant and this is on for orientation is on page 13 about a third of the way down whenever a defendant's alleged to have violated a condition ordered pursuant to 7554 the defendant may be arrested or cited in accordance with rules 3 or 18 of the Vermont rules of criminals procedure to appear before the court in which the conditions of release were ordered a judicial officer has discretion to issue a warrant for the arrest of a defendant charged with violating a condition and the defendant shall appear before the judicial officer the defendant alleged to have violated a condition may appear not later than the next business day following the arrest or citation this is commonly known as a flash site and this is done I believe in relief from abuse orders or or our phase so this creates a procedure where someone who's alleged to violate appears the next day which was a very I would say purposeful policy decision made by the Senate Judiciary Committee to get someone in front of the judge as soon as possible the prosecutor may also request so at this appearance there are a couple options that can occur the judicial officer may review and modify the conditions of release under 7554 but the prosecutor may also request at the hearing that the judicial officer schedule a summary hearing in accordance with subsection B of this section or elect to commence a contempt prosecution but you'll see later on they've got to choose it's an exclusive remedy they can't pursue both a proceeding under this section and a contempt proceeding so that's a choice that the prosecutor needs to make so at this hearing what makes something a summary hearing rather than a regular hearing it all is handled like sort of at once okay but I think there is a more technical definition that I would need to look up I think that's fine I'll handle it one more time and perhaps my colleague can give you a little bit more explanation than I can at this moment okay so upon request they can schedule that summary hearing to determine if the defendant violated a condition of release the state has the burden of proving a violation by preponderance of the evidence you'll see information stated in or offered in connection with any order do not conform to the rules of evidence so it is treated much like a bail hearing where the rules of evidence don't apply but the judicial officer does have discretion to take live testimony if deemed necessary so doesn't need to adhere to the rules of evidence but the judge can make the call and say we want to hear live testimony about this to really and that would help adhere to the rules of evidence so let's just say it's failure to rules of evidence don't apply plus a little bit and the judicial officer shall issue an appropriate order addressing the alleged violation pursuant to subsection C so there are a few ways that these violations can be disposed of the officer judicial officer needs to consider various factors if the violation of the condition does not otherwise constitute a crime if it does otherwise constitute a crime the nature of the underlying offense that the defendants charge with basically the defendants criminal history prior corrections history of violence medical mental health needs history supervision risk of flight and any risk that the defendant poses to the public so upon a finding by the court that someone did violate the condition of release the judicial officer must impose the least restrictive condition or combination of conditions to reasonably ensure the defendant's court appearance mitigate the risk of flight or to reason to protect the public and that's a new factor really that can be considered in the imposition of these conditions and again you'll see that they can use 7554 to impose those conditions so it's from that list again or the person can be placed in the pre-trial supervision program pursuant to new section 7554 which I'll get into momentarily but if the court determines that a violation condition also constitutes a crime the prosecutor may also pursue bail revocation so there's another level of discretion permutation that can hold someone accountable depending on the evidence of prosecutorial discretion and you'll see subsection D at the bottom of page 15 is that exclusive remedy provision that basically the prosecutor needs to choose one enforcement mechanism or the other so just if you could summarize what does 7554 E give us that it's not 7554? Well I think it's probably what's not in 7559 7559 is right now the only real enforcement mechanism and it's a prosecution for contempt of court for a violation of conditions 7554 I mean I suppose that those that conditions can be modified at the request of the prosecutor or the defendant sort of at their behest and then the court can then impose further conditions but there wouldn't really be sort of a greater accountability other than 7559 which is a separate criminal proceeding prosecution to hold them in contempt so this is essentially a second enforcement mechanism alongside 7559 and I would say consideration for the committee about the value of having a second proceeding alongside 7559 does that make sense because 7554 is really the bail conditions and I think that the purpose of this in 7559 is a little bit different it's really to hold people accountable for a violation of conditions not just giving the court discretion to impose more because it permits someone to do more so was there consideration of this modified 7559 there was testimony from Judge Zone I think about that possibility it was discussed but this was what was decided okay thanks section five is the revival electronic monitoring program the language has large mirrors the language that had previously sunset it for the pilot program the intent of the program is to insist with ensuring the defendant's compliance with conditions of release mitigating a defendant's risk of flight or reasonably protecting the public you will see those three phrases repeated many times in the section because it's really the purpose of it program and administration DOC shall expand and manage the electronic monitoring program for the purpose of supervising persons ordered to be under electronic monitoring as a condition of release in addition to or in lieu of the imposition of bail pursuant to 7554 of this title or placed on home detention pursuant to that home detention statute the department may support the program's monitoring operations through basically contracting with third parties that are public or non-profit entities the procedure is at the court the prosecutor or the defendant may may request that the court determine the appropriateness of someone to be placed into the program after hearing the court may order the defendant be placed under electronic monitoring provided that the court finds that placing the defendant under electronic monitoring will assist in ensuring compliance with conditions mitigating risk of flight or protecting the public and this is where on the public page 17 in making a determination the court considers can I just want it just caught my attention in section 2 on page bottom of page 16 assuming this is deliberate with any public or non-profit entities so that explicitly prohibits us from using for profit that was a specific change thank you so in making the determination the court considers the nature of the offense criminal history and any risk or undue burden that the person poses to someone residing at the resident's risk parties or risk to public safety that may result from the placement into the program the department is charged with establishing written policies and procedures in a manual to be used by the department any contractors or grantees to engage with the department and the courts and then failure to comply with conditions of the program the DOC may report a violation to both the prosecutor and the defendant provided that the defendant's failure to comply again is not their fault basically to address a report of violation the prosecutor has a few options review conditions under Sunday 554 pursue a violation of conditions under the new proceeding the prosecution of the defendant under Sunday 559 or to hold a bail revocation here again similar accountability but just through different programs and that can be imposed on the individual so this would be to hold them accountable for violations of that program so if the DOC contracts out of these services I'm understanding that that service would realize there's been a violation then they would report to DOC they would report to well I guess it's not it's not detailed specifically but presumably there's always dangers in presenting that yes it's the department's obligation well not obligation they have the discretion to report but yes if they contracted with them they would be a contracted with the department presumably they would need to abide by the department's own requirements we'll do some work on that sure that's where some of the issues happened before on the pilot because the discerned was who has jurisdiction over the person is it the entity that's supervising them or is it the entity that is providing that contract to that private provider I mean and again presumption is that there's still the policies and procedures manual that would be provided to these contractors I really would hope that the department of corrections would address that specific issue but yes it's also something that could be more specific any other questions let's get to pre-trial supervision section 6 so this is that way down page 18 for the purpose of pre-trial supervision very similar assist eligibility people through the use of evidence-based strategies to improve pre-trial compliance with conditions to coordinate and support the provision of pre-trial services when appropriate to ensure attendance at court appearances and to decrease the potential to recidivate with while waiting trial we'll see that there's a definition of a sconding that's been incorporated here Chair Emmons and Representative Morrissey may be the only ones that recall dealing with that definition a couple of years ago so it is now incorporated into this statute so pre-trial supervision what is it it's to supervise defendants who violate conditions of release pursuant to those two enforcement mechanisms the new one established under 7554E or the prosecution or for those who have not fewer than five pending dockets before court pose a risk of non-appearance at court proceedings pose a risk of flight from prosecution or pose a risk to public safety so those are the people that the program is meant to supervise I assume that five pending dockets does not have everybody shipped to this program it's just the higher needs individuals I believe that was the policy consideration so this is adding a layer that doesn't exist correct which part the whole thing so start with the pre-trial right that you and Brett Morrissey did also pre-sconding what what the absconding that was just the absconding definition I wouldn't the whole pre-trial supervision program isn't it's no and then the layer I believe that Representative Dolan was referring to is who's eligible for such a program so it's not just going to funnel people who are reigned and subject to avail hearing right away it's only if you violated and been adjudicated under the two enforcement mechanisms you have not fewer than five pending dockets or you pose a risk of non-appearance risk to the public or what have you so it narrows the funnel if you will about who gets into the program so what I'm looking for just so this is flag which I've never used that word in six years conditions of release isn't working which is contributing to our court backlog I think that's just what's going through my mind okay that's why I brought that up and where this language is coming from and all that thank you sir Barbara? So what Representative Dolan asked her question about a new layer I was thinking she meant a new layer of like Department of Corrections being involved pre adjudication pre-trial and you're saying that that's narrower for people so not everybody who is pre-trial would be eligible for something under DOC for the pre-trial supervision program specifically correct right just that narrower group that you just were saying yes and I feel like the last time we had a joint hearing or one of the times we were talking about how DOC's role usually is not involved pre-trial pre-trial so I just want to kind of figure out is this a new yes and no they are involving that there are people being detained that's true and hold detention and the way I look at this is that these are individuals who perhaps could use some more supervision and if you look around who are you going to assign for supervision and DOC just seems to be the choice correct me if I'm wrong but like in some other states there the courts have staff that do like it's in a more neutral yeah and it's just the you know probably the history of policy decisions to get to this point where DOC has assumed some of these roles as opposed to expanding the courts role in such individuals because we also talked about the version right with trying to do yeah so okay I just want to kind of name it and say it I think you also have to remember post adjudication people on probation they're not under they're under the court DOC supervises I know right so right same thing with furlough furlough the range of DOC right that's right okay yeah so just getting into that supervision aspect so DOC is responsible for supervising those placed into the pre-trial supervision program the department shall assign a pre-trial supervisor to monitor defendants in a designated region of Vermont and help coordinate any pre-trial services needed by the defense so that's helpful about basically putting them in contact with the supports that they may need as well the department shall determine the appropriate level of supervision based on evidence based screenings of those defendants eligible to be placed in the program the supervision methods include use of the department's telephone monitoring system which my understanding is it's essentially an automated system requiring them appointments and things like that telephonic meetings with the pre-trial supervisors so just over the phone in-person meetings or any other means of contact deemed appropriate which could include FaceTime or Zoom calls things of that nature so it gives them discretion and also doesn't necessarily require certain levels of supervision and that's largely to accommodate maybe the timeline and cell coverage and other things like that connectivity issues if the court determines that the defendant is appropriate for the program they issue the order placing the defendant and setting the conditions to supervision so the court sets the conditions of supervision and the department basically has the discretion on how to carry that out at the request of the court so this is the procedure now that the prosecutor or the defendant excuse me, at the request of the court the prosecutor or the defendant may be reviewed to determine if they're appropriate their view is scheduled upon the court's receipt of a report from DOC determining their eligibility this is kind of similar to the home detention process a defendant held without bail pursuant to 7553 and 7550 for the A are not eligible for pre-trial supervision a defendant eligible a defendant is eligible if they violated conditions pursuant to section 7554E or the content statute have not fewer than five pending court DOC it's opposed to the risk of non-appearance or risk of flight or risk of public safety the court may order the defendant to be released provided the court finds placing the person under pre-trial supervision will essentially ensure those things and in making such a determination the court shall consider the nature of the violations nature of the circumstances of the underlying offense defend its criminal history and any other factors deemed appropriate by the court subsection E this is compliance and review pre-trial supervisors shall notify the prosecutor and use reasonable efforts to notify the defendant of any violations of program supervision requirements committed by the defendant and why reasonable efforts was included there was discussion within the Senate Judiciary Committee about if someone is unrepresented and they may not keep their address and contact information up-to-date that basically you do the best you can to contact them upon submission of a pre-trial supervisor sworn affidavit by the prosecutor the court may issue a warrant for the arrest of the defendant who fails to report to the supervisor commits multiple violations of supervision requirements or suspected of absconding so that's really the only time there's a distinction between people notifying pre-trial supervisors notifying the prosecution and defense of any violation and then a prosecutor's ability to actually enforce those violations so it's a little bit of a higher bar for the prosecutor to really initiate that arrest or request for limits and then the defendant again is flash sighted to appear the next business day following the arrest to modify the defendant's conditions and then at the request of the court defendant can excuse me conditions may be reviewed the court may also issue an appropriate order in accordance with the following so this is basically an assessment of compliance if someone is compliant with all conditions of the pre-trial supervision program for at least 90 days they may receive a reduction in their supervision level or may be removed from the program altogether however if the defendant does violate the conditions of the program they may receive an increase in supervision or other sanction permitted by law and then subsection F was added that the whole program is contingent funding so basically that the program is not funded it's not operated and those funds could come from grant monies or state budget appropriation so the pre-trial supervision program established in this section shall operate only to the extent funds are appropriated for this operation and then second are you a blind or we don't have money to run government? I'm not a blind policy policy that's a policy yeah it's quarter left you have two minutes two minutes I can do it oh well alright I just disrailed you I'm not taking questions I do not question page 18 line 18 where it says the pre-trial supervision program shall supervise defendants but later on obviously there's discretion there and so I wonder if it should say upon court order this pre-trial supervision program shall supervise just to make that because as it currently reads in that section seems to be they have to do it but they only have to do it if they're ordered to do so so I'm just flagging that for later discussion okay and I'm not reading anything in here that says this but I want to be clear that the pre-trial supervision program is not electronic monitoring doesn't include electronic monitoring electronic monitoring it's not electronic monitoring at all alright so I suggest we'll be back here ten minutes after the floor and we'll give you ten minutes to go over the last couple of things because I'm sure there's going to be some questions on the revocation of the right to fail and I'd like to rush with that I mean that largely due to corporates' case law yeah but I think we need to make sure we understand that in a critical position but then we'll also be hearing from Commissioner Demo and hopefully the floor won't take too long hopefully you won't have a bunch of questions on where your path gets into the party well so so you're not here after three o'clock alright so we will take this up before we get back to it on Friday I guess we can just separately do that right but this afternoon this afternoon we're going to have Commissioner Demo we're both back here so Breschenson is actually substitutions is back here at three o'clock I can briefly just give a very general overview right now of the remaining sections if you'd like I mean go ahead and if you need to I'm going to scroll over I think you can go but yeah another so