H.409 would codify bail‑revocation steps; public defender says parts conflict with Vermont Supreme Court

A draft bill, H.409, to set detailed procedures for revoking pretrial bail drew extensive legal critique at a Judiciary committee hearing March 12, with a public defender and legislative counsel differing on scope and constitutional risk.

Eric Fitzpatrick of the Office of Legislative Council told the committee the bill “creates a procedure for bail revocation” and aims to align revocation standards and procedures with relevant Vermont Supreme Court requirements. Rebecca Turner, a public defender with the Office of the Defender General, said the bill is “alarming” and that several provisions are inconsistent with Vermont case law and defendants’ constitutional protections.

The bill would (per the draft presented to the panel) do two things: add a defined procedure for motions to revoke bail and provide a statutory definition of what it means for a defendant’s conduct to “disrupt the prosecution.” Under the draft, either a prosecutor or the court could move to revoke bail; the State would bear the burden of proof by a preponderance of the evidence; evidence could include affidavits and sworn statements; a revocation order would require notice and a hearing and a specific finding that a legitimate and compelling state interest exists; and, if bail is revoked, the defendant’s case would be set for trial within 60 days. The bill’s effective date was presented as July 1 of the coming year.

Turner told committee members the draft conflicts with multiple Vermont Supreme Court decisions that limit when pretrial detention may be imposed. “This language is inconsistent with the plain language of these decisions,” she said, citing State v. Gates and related rulings as the controlling precedents. Turner said Gates and other cases require a narrow showing — including a nexus between the defendant’s conduct and disruption of the underlying prosecution — before a court may revoke pretrial release. She argued the bill’s current definition permits revocation on broader grounds (including, she said, “merely committing a criminal offense”) and therefore risks authorizing preventive detention beyond constitutional bounds.

Committee members and counsel pressed on several specific provisions: the draft allows the court to initiate a motion to revoke bail on its own, a change Turner called “extraordinary” because it risks blurring the separation between judicial and prosecutorial functions; it allows evidence by affidavit or sworn statement, which Turner said is contrary to case law requiring some live testimony in revocation hearings; it authorizes warrantless arrest for the purpose of enforcing a revocation order (cross‑referencing arrest rules), which raised questions about Article 11 warrant requirements; and it authorizes prosecutors to move to forfeit bail following a revocation order, which Turner said could have punitive effect inconsistent with State v. Brown.

Members also debated a new 60‑day trial requirement after a revocation order. Supporters said a speedy trial requirement for detained defendants could reduce backlogs; Turner and others said the provision is ambiguous about which docket is required to be tried (the underlying charge versus later charges or violations), could reallocate court resources, and might produce unintended incentives or harms unless the language is clarified.

Eric Fitzpatrick acknowledged the bill’s purpose as aligning procedure with constitutional decisions and walked the committee through draft language, including the change from “impedes” to “disrupts” the prosecution and the proposed statutory definition of that phrase. He said the bill also clarifies evidentiary and procedural steps, arrest authority after an order, and a mechanism for either party to seek review of a revocation order.

The committee did not take formal action on H.409 at this hearing. Members were told additional witnesses will appear at subsequent sessions to address constitutional questions and practical effects. The bill’s sponsor and additional witnesses were scheduled to return for further discussion.

The committee’s review will continue at a later hearing, where the Judiciary panel expects to hear additional testimony on the constitutional and operational issues raised.