Senate Judiciary receives primer on pretrial release, bail and expanded home detention
January 25, 2025 | Judiciary, SENATE, Committees, Legislative , Vermont
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MONTPELIER, Jan. 24, 2025 — The Senate Judiciary Committee heard a detailed presentation on pretrial release, bail and the expanded home‑detention program, including statutory standards and recent changes in S.195.
Ben, identified on the record as a lawyer from the Office of Legislative Counsel, told the committee that bail’s primary purpose is to ensure a defendant’s appearance in court and that Vermont’s framework is founded on the U.S. and Vermont constitutions and Title 13 statutes. “Bail is defined in statute as any security, including cash, that's pledged to the court to ensure that the person who's charged with the criminal offense will appear,” Ben said.
The presentation reviewed three constitutional exceptions that permit holding a defendant without bail: offenses punishable by life imprisonment, a violent‑felony exception, and persons awaiting sentencing. Ben explained that the violent‑felony provision now uses a clear‑and‑convincing evidentiary standard and that if a defendant is held without bail under the violent‑felony exception, a speedy‑trial requirement generally requires trial within 60 days.
Ben summarized statutory guidance at 13 V.S.A. §7554 and related provisions (the committee referenced 13 V.S.A. §§7553, 7553a, 7554(b), and the separate charge for violations of conditions, 13 V.S.A. §7559). He described how the court must impose the least‑restrictive conditions necessary to secure appearance and may consider a broad range of factors when assessing risk of flight and public safety, including employment, community ties, prior compliance with court orders, and the weight of evidence.
Key points and clarifying details raised during the session included:
- A presumption of pretrial release exists and judges must order personal recognizance or an unsecured appearance bond unless the court finds release poses a flight risk; bail cannot be “excessive” but the statute and courts have said it does not have to be "affordable."
- The violent‑felony standard requires clear and convincing evidence of a substantial threat of physical violence and that no conditions will reasonably prevent that threat; rules of evidence need not apply at that stage.
- Home detention is now authorized in two contexts after S.195: (1) as an option for defendants detained solely because they cannot afford bail (motion available after more than seven days detained), and (2) for some defendants alleged to have violated conditions of release when home detention is reasonably available and appropriate. Ben said time served on home detention may count as credit toward a later incarceration term if the defendant is convicted.
- Electronic monitoring requires an appropriate residence and sufficient cellular service in many parts of the state; DOC assesses proposed residences for monitoring suitability.
- For violations of conditions, prosecutors can seek reassessment of conditions, file a separate charge for violation of conditions (13 V.S.A. §7559), or pursue bail revocation when a significant disruption or nexus to the prosecution exists; the presenter said bail revocation is sparingly used and requires a high bar.
Committee members asked about data on whether bail affects court appearance rates and about narrowness of conditions that would warrant detention. Ben acknowledged prior data (2018–2022) was discussed in a previous session and noted the department of corrections maintains additional data; he said the constitutional and statutory framework requires narrowly tailored conditions and that single or minor violations do not necessarily support detention. "I believe we are the only division in the state that actually offers a free legal clinic to anyone who wishes to access it," McClain had said earlier about the Environmental Division (referenced by the committee during the hearing).
Why it matters: The statutes and standards governing bail, conditions of release and home detention determine whether people remain in custody before trial and what supervision or restrictions are imposed. Committee members said the presentation provides foundational context for possible statutory changes under consideration this session, including proposals to change statutory language (for example, the committee discussed language about "impeding" versus "disrupting" prosecution).
Next steps: Committee members said the presentation will inform deliberations on proposed bills affecting pretrial rules, conditions of release and home‑detention programs. The presenter offered to provide follow‑up materials and case citations for members who request them.
Ben, identified on the record as a lawyer from the Office of Legislative Counsel, told the committee that bail’s primary purpose is to ensure a defendant’s appearance in court and that Vermont’s framework is founded on the U.S. and Vermont constitutions and Title 13 statutes. “Bail is defined in statute as any security, including cash, that's pledged to the court to ensure that the person who's charged with the criminal offense will appear,” Ben said.
The presentation reviewed three constitutional exceptions that permit holding a defendant without bail: offenses punishable by life imprisonment, a violent‑felony exception, and persons awaiting sentencing. Ben explained that the violent‑felony provision now uses a clear‑and‑convincing evidentiary standard and that if a defendant is held without bail under the violent‑felony exception, a speedy‑trial requirement generally requires trial within 60 days.
Ben summarized statutory guidance at 13 V.S.A. §7554 and related provisions (the committee referenced 13 V.S.A. §§7553, 7553a, 7554(b), and the separate charge for violations of conditions, 13 V.S.A. §7559). He described how the court must impose the least‑restrictive conditions necessary to secure appearance and may consider a broad range of factors when assessing risk of flight and public safety, including employment, community ties, prior compliance with court orders, and the weight of evidence.
Key points and clarifying details raised during the session included:
- A presumption of pretrial release exists and judges must order personal recognizance or an unsecured appearance bond unless the court finds release poses a flight risk; bail cannot be “excessive” but the statute and courts have said it does not have to be "affordable."
- The violent‑felony standard requires clear and convincing evidence of a substantial threat of physical violence and that no conditions will reasonably prevent that threat; rules of evidence need not apply at that stage.
- Home detention is now authorized in two contexts after S.195: (1) as an option for defendants detained solely because they cannot afford bail (motion available after more than seven days detained), and (2) for some defendants alleged to have violated conditions of release when home detention is reasonably available and appropriate. Ben said time served on home detention may count as credit toward a later incarceration term if the defendant is convicted.
- Electronic monitoring requires an appropriate residence and sufficient cellular service in many parts of the state; DOC assesses proposed residences for monitoring suitability.
- For violations of conditions, prosecutors can seek reassessment of conditions, file a separate charge for violation of conditions (13 V.S.A. §7559), or pursue bail revocation when a significant disruption or nexus to the prosecution exists; the presenter said bail revocation is sparingly used and requires a high bar.
Committee members asked about data on whether bail affects court appearance rates and about narrowness of conditions that would warrant detention. Ben acknowledged prior data (2018–2022) was discussed in a previous session and noted the department of corrections maintains additional data; he said the constitutional and statutory framework requires narrowly tailored conditions and that single or minor violations do not necessarily support detention. "I believe we are the only division in the state that actually offers a free legal clinic to anyone who wishes to access it," McClain had said earlier about the Environmental Division (referenced by the committee during the hearing).
Why it matters: The statutes and standards governing bail, conditions of release and home detention determine whether people remain in custody before trial and what supervision or restrictions are imposed. Committee members said the presentation provides foundational context for possible statutory changes under consideration this session, including proposals to change statutory language (for example, the committee discussed language about "impeding" versus "disrupting" prosecution).
Next steps: Committee members said the presentation will inform deliberations on proposed bills affecting pretrial rules, conditions of release and home‑detention programs. The presenter offered to provide follow‑up materials and case citations for members who request them.
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