The Senate Judiciary Committee’s keystone bill this session, S.295, also known as the “risk assessment” bill, has become what some in the Statehouse call a Christmas tree, decorated with an array of ornaments from interest groups who recognize the idea has momentum.
S.295 was ostensibly designed to create a system for drug addicts to receive services before they go to trial or before they are charged, but ask five people what the legislation does and you get five different answers.
For heroin users, S.295 might be a lifesaver. The legislation could give them unprecedented access to treatment at a time when they are most amenable — before or right after they are charged with a crime.
For doctors, it would mean new rules for treating opiate addiction.
And for police, it would add a new criminal charge for armed burglary.
So is the bill style or substance? A shiny object to make it look like the state is tackling the “full-blown heroin crisis?” Not really. It’s more like an attempt to shift traditional criminal justice philosophy, executed through keen political maneuvering.
A major thrust of the legislation, the one pushed hardest by Gov. Peter Shumlin, suggests state’s attorneys create alternative justice programs in the courts. Such programs already exist in some counties. For others, it would be a dramatically new approach in dealing with alleged criminals.
If the proposal is enacted, state’s attorneys would be encouraged to shift away from traditional methods of prosecution for low-level drug crimes and provide an off-ramp for drug addicts who need treatment alternatives.
The bill is a lesson in the human and complicated process of lawmaking, which often is formulated behind the scenes and propelled by compromise.
Swaths of the legislation read more like a position paper than a set of rules.
The bill is also decorated with everything from stiffer burglary penalties to rules to curb diversion of the drug Suboxone to a clarification of the so-called Good Samaritan law, which shields those who report a drug overdose from prosecution.
In general, the legislation requires state’s attorneys to better understand how to set bail guidelines for low-level alleged offenders. The bill sets up a system of “risk assessments” that evaluate a defendant’s risk of flight.
Several provisions of the bill are mandatory, but others are left to the prosecutor’s discretion. For example, it suggests that in some instances defendants be offered drug treatment or mental health treatment instead of jail.
Sen. Dick Sears, a Bennington Democrat, is chair of Senate Judiciary and a strong supporter of the bill.
“This tries to separate out those who may be able to be treated with the understanding that it may not always be successful, but it’s an attempt,” Sears says.
Most stakeholders agree that approach makes sense, especially because local research shows that it works.
But not everyone is convinced the state needs legislation to accomplish what Chittenden County prosecutor T.J. Donovan, Spectrum Youth & Family Services, Windsor County’s Sparrow Project and others already have put into practice.
“To do what the governor hopes to do with the opiate problem, we don’t need any bill or legislation to do that,” Defender General Matthew Valerio says. “Any prosecutor can decide what cases to charge and what cases not to charge.”
So is the bill style or substance? A shiny object to make it look like the state is tackling the “full-blown heroin crisis?”
Not really. It’s more like an attempt to shift traditional criminal justice philosophy, executed through keen political maneuvering.
Sears and the late Sen. Sally Fox for several years wanted to create a uniform way for courts to determine whether an arrested suspect was dangerous or a risk of flight. Judges could use that information, they believed, to set bail.
Last year, the Shumlin administration and others, including Valerio and Andy Pallito, commissioner of the Department of Corrections, started talking about rapid-intervention programs. Recidivism rates were worrisome and prisons became filled with low-level offenders whose crimes appeared to stem from underlying substance abuse, mental illness or other basic needs.
“There are key people in the administration who for many months in advance of the legislative session have been talking about this issue and what things they need to do to get a significant number of offenders out of the criminal justice system and into a treatment system,” Valerio said.
So as the Legislature convened this year, the administration wrapped the best elements of existing precharge and pretrial service programs into Sears’ risk assessment bill.
The governor tapped Bobby Sand, a former Windsor County state’s attorney, to shepherd the bill through the Statehouse.
That process is complicated but healthy, Sand says.
Shumlin could have created alternative programs in other counties as pet projects, but buy-in from the Legislature, and state’s attorneys themselves, will ensure the programs have a better chance of success, Sand says.
“It is more cumbersome that there’s a legislative component to this, but I think it’s in the long run going to be really important that the General Assembly supports the idea,” Sand said.
Before state’s attorneys change the way they operate, some need a gentle prod, or at least some money for implementation, Sears said.
“I’m not sure state’s attorneys would actually do it, but also I think you have to have the guidelines there,” he said. At the same time, the law gives them flexibility to make each program unique, he said.
The bill sets aside money for caseworkers who would keep tabs on defendants who have been given instructions by a judge or prosecutor, such as attending addiction treatment.
Washington County State’s Attorney Tom Kelly said he’s open to trying the idea if there is some way to ensure that precharge services are only offered to people who might actually benefit from them. And if there is restitution for victims.
As with any major legislation, money is a factor.
“If the governor had done this without legislative support, then you get more complicated funding issues,” Sand said.
Shumlin asked for $760,000 in next year’s budget to roll out precharge and risk assessment programs. That almost certainly won’t be enough, but Sand says it’s a start.
Limited money could force programs to reduce the crimes eligible for these services, but that could be a good thing if it quells the fears of some, who worry about “get-out-of-jail-free” cards for serious offenders. (That’s not the goal at all, Sand says.) confused what’s not the goal? who says it’s a good thing?
The bill also needs support from the courts, to cooperate with the caseworkers who will track suspects and report to the judge or to prosecutors on whether they comply with instructions.
There will be other hurdles for S.295 as it makes its way from the Senate Health and Welfare Committee where it is this week, to the Senate floor, the House and the governor’s desk.
Doctors don’t like the Suboxone regulations. They say the new rules are an “unintended disincentive” that will deter physicians from treating addicts at a time when there is a shortage of doctors who are willing to take on such patients.
Valerio objects to stiffer burglary penalties.
“We don’t need new criminal laws. What we need is the ability to deal with the people who are finding it difficult to stay sober and keep themselves on the right side of the criminal laws we already have,” he says.
Sears says that section shows constituents that lawmakers understand their fear of violent, drug-motivated property crimes. Whether it actually deters those criminals, he said, is a different question.
“Hopefully, it sends a message,” Sears says.
The bill also stiffens penalties for heroin trafficking. And it contains what some lawmakers call a “toothless” section directing pharmaceutical companies to create more tamper-resistant packaging.
A provision about strip searches of corrections officers, in an attempt to cut down on diversion of drugs into prison, was cut from the legislation.
Ultimately, the Christmas tree effect could lead to the bill’s success, or its downfall.
“The stew doesn’t come out the same when you have too many cooks,” Valerio said.
But as long as the risk assessment and rapid referral portions survive, Valerio and Sand say they don’t mind if the bill comes with decorations. They don’t think the ornaments will kill it.
“As long as we can move forward with trying to get people some treatment and the other parts don’t cause too much harm, then we’re doing some good,” Valerio said.
If the bill passes, it could open the door to a new set of challenges by funnelling more people into overburdened treatment centers.
“Will there be some painful awareness that this bill reveals in terms of (treatment) capacity? I think that’s probably inevitable, but in the long run I think that’s a good thing,” Sand said.
