By Guy Page
In the face of rising homicide and drug crime, Vermont must pull back from several criminal justice reform laws passed in recent years, Gov. Phil Scott told the State House press at noon Wednesday.
“We should learn from the failed experiments in places like San Francisco and Oregon, where even they are thinking of repealing many of the measures they’ve put in place,” Scott said.
Gov. Scott has been criticized for just now criticizing bills he signed into law (including reducing bail options) and not proposing enough criminal justice funding, such as more deputy state’s attorneys to reduce the staggering case backlog. Also he said now just isn’t the time, budget-wise, to talk about building a new state prison – a suggestion he floated several years ago.
What we can do is pass laws that make Vermont safer, he said.
“We can’t allow bills that fail to meet the moment, and especially ones that move us in the wrong direction,” Scott said. “We hear from law enforcement, municipal leaders, business owners, and retirees about their significant concerns about rising crime.”
Public Safety Commissioner Jennifer Morrison provided data showing violent and drug-related crime is indeed rising. For example:
In 2023 there were 27 homicides, of which 11 were drug related. Four were domestic-violence related – a category that used to be the leading cause of homicides, but no more. Of the 26 homicides in 2022, half were drug-related. Four were domestic-violence related. (None of the 2023 homicides were ‘officer-involved.’ Two in 2022 involved a police officer, Morrison said.)
When three unsolved homicide cases are resolved, the number of drug-related cases could climb higher, Morrison said.
Scott wants the Legislature to act on four key areas.
Reform Bail Reform. “The reality we face due in part to reforms that have reduced accountability including: conditions of release that don’t have the consequences needed to make them effective” and “our decision to effectively remove bail as a tool to get people to appear in court,” Scott said.
Current state law states a person charged with a violent felony may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence. That law was upheld last December by the Vermont Supreme Court in State V. Christopher Brown.
However, the law caps bail at $200 for misdemeanors and other, less serious felonies.
The Vermont Constitution (Chapter II, section 40) prohibits “excessive bail” and outlines what is excessive. Bail may be imposed in the case of violent offenses, and for more than 60 days if the offense is punishable by death or a life-sentence.
At least one prominent state senator has publicly invoked senate powerlessness to make bail tougher, under the ‘excessive bail’ clause. As commentator Bill Gillam wrote of an Addison County public safety meeting in VDC November 9: “Sen. [Ruth] Hardy repeated several times that the Vermont constitution prohibits excessive bail. “I just want to clarify and underscore that excessive bail is prohibited by our state constitution. It is not statutory,” Hardy said. “It is not something that the three of us in this room could introduce the bill about and change next session. We would have to introduce a constitutional amendment to the Vermont state constitution.”
Gillam said: “But no one is asking our local legislators to push for constitutional repeal of the ‘excessive bail’ provision. Instead, I and many other Vermonters ask lawmakers to bolster bail laws as permitted by the Constitution, which says: “All persons shall be bailable by sufficient sureties.”
However, should the state constitution need amending, this Legislature and the last have both shown themselves willing to undertake that task – as it did in 2022 with removing indentured servitude and protecting reproductive rights.
Conditions of release need to be revisited, as well, Scott said. “To put the challenge in perspective, we had over 5,000 arrest warrants for “failure to appear” issued last year. And over 12,000 of our 21,000 criminal dockets involve repeat offenders. The administration has proposed initiatives to limit this problem, Scott said.
Tougher drug laws for when death results – “We also need to strengthen our ability to prosecute when death results from these sales. One problem we have now is the defense of ‘willful ignorance.’ Dealers claim they didn’t know the drugs they were selling contained deadly fentanyl. They should just assume everything they’re selling is deadly.”
Delay raise the age: “We also need to delay the “raise the age” provision, which has put older, more violent offenders into our DCF system and created a number of unintended consequences that harm, rather than help, our youth.”
In particular, traffickers are preying on young adults, using them because they know accountability is less likely, Scott said.
Scott said the State of Vermont erred by moving forward with this policy systems were in place to handle the increased caseloads of younger adult offenders. Vermont still has no secure youth treatment and detention facility to replace Woodside, which closed in 2019.
Seal, don’t expunge – Vermont should allow sealed criminal records, with law enforcement access as needed, but not expungement. “Completely erasing criminal records makes no sense, especially when it comes to our collective concerns about repeat offenders, as well as gun safety,” Scott said. “Sealing accomplishes our goal, so past mistakes don’t limit someone’s ability to get a job or housing.”
“Some have described my approach as ‘tough on crime’ but the alternative is being soft on crime,” Scott said. “I’m not talking about going back to the approach of the 80s and 90s, or some wild swing to the right. I’m just asking lawmakers to meet me in the middle.”
In an upcoming issue, VDC will cover legislative initiatives on expungement, bail reform, raising the age of accountability, and other criminal justice reforms.