A key Senate panel is developing a bill that would again delay the next phase of Vermont’s “Raise the Age” initiative and would revise laws on violent offenses and some drug crimes.
Though not yet finalized, S.58 is in no small part a response to the widespread perception — echoed by Gov. Phil Scott, among other leaders — that Vermont faces a public safety crisis spurred by a lack of accountability in the criminal justice system.
The Senate Judiciary Committee panel expects to vote out the bill, which has become a vehicle for at least five different policy proposals, by the end of this week.
At the same time, House lawmakers have been weighing their own slate of proposals including stricter penalties for retail and vehicle thefts and an effort to expand access to restorative justice programs for crime victims and perpetrators statewide.
The Senate bill includes what Sen. Dick Sears, the powerful Bennington Democrat who chairs the judiciary panel, has called a “compromise” with Scott’s administration delaying, for the third time, implementation of the next stage of a Vermont law intended to keep more young people out of the criminal court system for many offenses.
Vermont is slated to “raise the age” of juvenile jurisdiction to include 19-year-olds in July. But S.58 would push that change back to April 2025. (The first stage of the law, which included raising the age to include 18-year-olds, went into effect in 2020.)
Scott, a Republican, questioned in his budget address last month whether the initiative, which he signed into law as 2018’s Act 201, may have been a mistake.
S.58 would also require the Vermont Department for Children and Families to produce reports every other month on its progress toward a number of benchmarks that officials believe are necessary before it can implement the next phase of “Raise the Age.”
Aryka Radke, the department’s deputy commissioner, was adamant when testifying to senators on Friday that DCF does not have the resources — including a secure facility to hold young people and sufficient staff to handle the workload — to bring 19-year-old offenders into its fold, and that doing so would “cause more harm than good.”
Moreover, DCF Commissioner Chris Winters told the panel last week that even if his staff are able to meet many of the benchmarks outlined in S.58, he could still be back before lawmakers pushing for another delay to Act 201 at this time next year.
Winters’ comments have drawn pushback from some of the Senate judiciary panel’s progressive voices as well as from the Vermont Office of the Child, Youth, and Family Advocate, a state entity tasked with supporting youth in the juvenile justice system.
Matthew Bernstein, who leads the office, told senators on Friday that he does not think Vermont should pause “Raise the Age” on account of a lack of DCF resources, because the impact of allowing more young offenders under its jurisdiction would be minimal.
He acknowledged that the department faces staffing challenges — a point that’s also been emphasized by the state employees’ union — but pointed to a recent report from Columbia University’s Justice Lab, which found that the number of youth-involved cases coming before Vermont family courts has been trending down since Act 201 passed.
Sen. Nader Hashim, D-Windham, the committee’s vice chair, characterized the choice before lawmakers as an example of the metaphorical “trolley problem” — where both outcomes could lead to negative impacts on the state’s youngest offenders.
“Is the harm more worse, or less worse, in the criminal justice system compared to the harm that may happen if they were to go to DCF with the current capacity?” he said.
In a related measure, S.58 also would alter the state’s list of crimes, known as the “Big 12,” that officials deem serious enough to warrant charging an offender in adult court even if they are young enough to enter the juvenile system for most other offenses.
The bill would remove one offense from that list: burglary or attempted burglary into an occupied dwelling. Sears said on Friday that the change — which not all of the other committee members supported — was driven by data showing that prosecutors brought the charge against young people in the state only sparingly over the past five years.
The bill would also, however, add three offenses to the list: using a firearm while committing a felony, trafficking a regulated drug, and aggravated stalking. These three offenses would be chargeable in adult court for people ages 16 and up, whereas the others on the “Big 12” list apply to people starting at age 14, the bill states.
These proposed changes also face criticism. The Vermont Department of State’s Attorneys and Sheriffs said it opposes nixing the burglary crime from the list, while the American Civil Liberties Union of Vermont has opposed adding any new offenses.
S.58 also includes broader changes to the state’s drug laws, including a new felony charge for dispensing or selling xylazine, an animal sedative that is not approved for human use and has been increasingly found in illicit opioids across the state.
The bill would also eliminate a legal defense that someone charged with selling drugs did not know the drugs contained a deadly substance, such as fentanyl. State prosecutors said that this defense has been used repeatedly in recent years.
Erica Marthage, the Bennington County state’s attorney, told the Senate panel last month that revising this “knowing” standard would make it easier for her office to bring charges against people alleged to have sold drugs leading to a fatal overdose.
“At least two or three of those cases have been, in the past year, dismissed because we have not been able to prove that the individual knew there was fentanyl,” Marthage testified. “I feel like we are doing a great disservice by not having more rigorous statutes to address the drugs that are out there currently.”
Another slate of measures in the bill takes aim at concerns that people who are selling or using drugs are impacting public safety in residential settings.
The bill would require someone who is cited or arrested for selling or dispensing illicit drugs to be arraigned “on the next business day” if their alleged activity happened at a residence where the person “is not a legal tenant.”
It would also reduce the amount of notice that a landlord is required to give a tenant when initiating eviction proceedings for “criminal activity, illegal drug activity, or acts of violence, any of which threaten the health or safety of other residents.”
Sen. Tanya Vyhovsky, P/D-Chittenden Central, questioned on Friday whether this language could be used to discriminate against certain tenants when there were other tenants engaging in the same illicit behaviors, too. Vermont law otherwise prohibits landlords from evicting a tenant on grounds that are not universally enforced.
“That’s correct,” replied Jon Gray, an attorney in the Office of Legislative Counsel. “You could, conceivably, hide that kind of discriminatory intent behind this.”
Sears said Friday he planned to run the eviction measure by the Senate Committee on Economic Development, Housing and General Affairs for additional input.
