[A] panel of House lawmakers is looking to combine a popular domestic terrorism bill with a less popular rewrite of the state’s “attempts” statute in a move they hope will lead to the passage of both.
Both pieces of legislation have been brought forward in response to a Vermont Supreme Court ruling in the case of an 18-year-old man accused of plotting to shoot up his former high school in Fair Haven.
The not-so-popular bill, S.267, would make it easier to prosecute suspects for attempted crimes. It barely passed out of the House Judiciary Committee on a 6 to 5 vote and was panned in a House Democratic caucus last week.
It was set to hit the House floor for debate Tuesday morning, but was pulled back for at least two days.
Committee members met later Tuesday and discussed changes to the legislation they hope will address concerns raised by those who had criticized the proposal.
Also, they are looking at joining it with H.25, which was approved last month in the Senate and makes changes to the state’s domestic terrorism statutes. That legislation also came about as a result of the same high court decision in the case of Jack Sawyer, 18, of Poultney.
Rep. Maxine Grad, D-Moretown and chair of the House Judiciary Committee, said Tuesday afternoon that she believed combining the two proposals into one bill made sense.
“I do think that they both go together,” Grad said during a committee meeting. “They both address what we’ve been asked to address.”
However, Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee, said in an interview Tuesday that he has concerns about attaching the domestic terrorism bill that unanimously passed the Senate to legislation that could drag it down.
“I’d hate to see the whole effort on domestic terrorism as way to address what many see as a loophole or gap in Vermont law fail because of this attempt language,” Sears said.
Sears said the Senate Judiciary Committee looked at making changes to the attempt statute, but found that too complex and time consuming to do near the end of the session. The panel opted instead to move forward on domestic terrorism legislation.
“We certainly expected them to make improvements to our domestic terrorism bill,” Sears said of House lawmakers. “I hate to see them lose the whole bill over this.”
The flurry of legislation in both chambers stems from the case involving Sawyer, who was initially ordered held without bail following his arrest in mid-February on attempted murder charges.
Earlier this session, the case prompted historic changes in the state’s gun laws. Now, as the session winds down, the case is still keeping lawmakers busy.
The Vermont Supreme Court ruled last month in the Sawyer case that, under 100 years of Vermont case law, merely planning to commit a crime did not meet the standard for him to be charged with an attempt to commit a crime.
The ruling meant Sawyer could no longer be held without bail, and has since led prosecutors to drop the most serious charges against him.
He was released late last week on $10,000 bail and is currently receiving voluntary psychiatric care at the Brattleboro Retreat. He still faces two misdemeanor offenses, though his attorneys are challenging whether those should stand as well.
Gov. Phil Scott issued a statement following the Supreme Court ruling in the Sawyer case saying he was “appalled” that Sawyer could be released. He urged the Legislature to revise the state’s laws to address such cases.
According to the legislation passed out of the Senate, “domestic terrorism” means “engaging in, or taking substantial steps to commit” a crime involving, causing death or serious bodily injury to multiple people, or threatening a civilian population with mass destruction, mass killing or kidnapping.
The maximum punishment for the offense is up to 20 years in prison.
Meanwhile, the legislation that passed out of the House panel last week applies only to attempts made in major crimes, such as murder, kidnapping and sexual assault. The proposal applies a “substantial step” analysis to the state’s attempt statute.
Such substantial steps, according to the proposal, including lying in wait, scoping out a location, and obtaining materials to carrying out a crime.
However, while that proposal lowered the threshold for an attempt crime, it did not lower the penalties of up to life in prison.
That’s because the proposal’s backers wanted to continue to allow judges the opportunity to hold those charged with such offense without bail, which can be done when a defendant is charged with an offense that carries a possible life sentence.
That drew concerns from civil liberties advocates, and lawmakers on both sides of the aisle.
The penalty for an attempted crime, with a proposed lowered threshold, carried the same penalty as the underlying crime. For example, both attempted murder and murder carried possible life sentences.
With the proposal lowering the threshold for an attempt crime, some lawmakers felt the maximum penalty should be reduced as well.
On Tuesday, at this week’s House Democratic caucus, Grad and Rep. Martin LaLonde, D-South Burlington, told their colleagues the latest proposal does just that.
They said for those serious attempt crimes considered under the legislation, the maximum penalty would be reduced to not more than 20 years, unless there is “serious bodily injury.”
However, LaLonde said, the change means with fewer attempt crimes carrying a possible life sentence it would affect a judge’s options in certain cases for holding a defendant charged with such an offense without bail.
“That is the tradeoff,” LaLonde said. “The tradeoff is that you get to act earlier in the course of conduct, but we will not have the presumption that somebody will be held without bail.”
It’s a tradeoff that appeared to be welcomed news among those who last week were critical of the legislation.
“I think that addresses really substantially the concerns that I had,” Rep. Bill Lippert, D-Hinesburg, who formerly served as chair of the House Judiciary Committee, told Grad and LaLonde. “I appreciate your willingness to address that.”
However, later in the day, another change did sit well with everyone.
After the afternoon session of the House Judiciary Committee in which the combined approach to the legislation was discussed, Vermont Defender General Matthew Valerio, whose office is representing Sawyer, expressed his concern.
“If you want to be specific about addressing school threat-type actions than the domestic terrorism statute is a better vehicle to do it, in my view,” he said.
Attempt law, Valerio said, has more than a century of case law behind it in the state.
“You don’t want to ruin what’s been working good for 100 years when you could focus your attention on the one area that people think is deficient,” he added.
The House panel took no votes on the legislation Tuesday.
The committee is expected to take up the latest draft of the legislation and possibly vote on it Wednesday. It could also then land on the House floor for consideration by the full chamber later in the day.
