Where and how should Vermont provide care and oversight for a person deemed incompetent to stand trial for a serious crime?
Those longstanding questions are back before state lawmakers, as two related bills already approved in the Senate are now being reviewed by the House Judiciary Committee.
Both S.91 and S.89 attempt to provide more direction to state agencies about what should happen after a court finds that someone cannot stand trial for an alleged crime because they are unable to participate in their own defense due to a severe mental illness, developmental disabilities or both.
Most people with severe mental illness are not involved in crimes, let alone violent ones, witnesses repeatedly testified. And most people accused of violent crimes do not have a mental illness. But advocates for these bills say Vermont does not have an adequate system for managing the few who do.
“Right now, there is no public-safety-focused process for persons who are not competent or not sane but who are not safe to be in the community,” Jared Bianchi, Bennington County deputy state’s attorney, told the committee late last week. “We need legal structures that provide for clarity and security in all of these serious cases.”
Bianchi is leading the prosecution of Darren Pronto, a Pownal man charged with first-degree murder in the 2021 stabbing of Emily Hamann in Bennington. Pronto had earlier been found incompetent to stand trial for violent offenses, and after a commitment hearing, he was involuntarily hospitalized — but then released for outpatient treatment.
A person can be placed involuntarily into the custody of the Department of Mental Health or the Department of Aging and Independent Living if a court determines that person is a danger to themselves or others.
A 2021 law approved in the wake of Hamann’s killing requires the human services department to notify prosecutors in a pending case about a change in placement.
One of this year’s bills, S.91, goes further to state that commitment into custody does not change the conditions of release or the bail requirements set by the criminal court.
For example, if a court determines a person should be held in prison without bail until their case is adjudicated, that person should not qualify for outpatient treatment while their case is still pending, even if the mental health department determines that person no longer qualifies for hospitalization.
That is one of the bill’s most important provisions, Hamann’s mother, Kelly Carroll of Bennington, told the House Committee on Judiciary on Tuesday. “The Department of Mental Health does not have any mandate for public safety,” she said.
Last week, that outcome played out in Pronto’s case under a special agreement among the parties when he was returned to prison after being treated at the Vermont Psychiatric Care Hospital in Berlin. Two previous evaluations found him incompetent to stand trial for the murder, and a third evaluation is expected.
Another option might be placement in a residential forensic facility, which S.89 proposes to create in a portion of the building that houses the Vermont Psychiatric Care Hospital in Berlin.
Legislators are also looking at clarifying what specific legal processes would need to be followed before a placement was changed.
Also, S.91 would require both the mental health department and the Department of Aging and Independent Living to report back to the Legislature by mid-November about whether a formal “competency restoration” program should be developed. That would involve specific treatment programs aimed at returning the accused person back to competency so that a trial can be held.
Whether that kind of program is appropriate, or legal, was one of the debates that caused a two-year study committee on these topics to fail to reach consensus about how to address gaps in the current process. The resulting report was delivered to the Legislature in January with dueling recommendations.
For a victim’s family, restoring an accused person to competency is the only way the case will ever be tried, JoAnne Kortendick told the committee. Kortendick, who lives in Colorado, is a sister of Kathleen Smith, a social worker killed in 2010 by a man found not competent to be tried. He died nine years later of a heart attack, still lodged at the state psychiatric hospital.
“It’s not a panacea. Not everyone is going to be restored to competency,” Kortendick said. “But there needs to be a process and the victims must have some kind of a voice in all of this, or at least get information.”
