Senate Judiciary debates standards for release hearings and structure of forensic facility in S.193
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Summary
Senate Judiciary members continued markup of S.193, focusing on whether to require a pre-release 'hold without bail' hearing, who bears the burden to prove safety for release, the evidentiary standard (preponderance vs. clear and convincing), and which agency would operate a proposed forensic facility. Members agreed to seek judge and agency input before finalizing language.
The Senate Judiciary Committee on Feb. 18 continued markup of S.193, a bill that would create hearings and procedures for people found not guilty by reason of insanity and address operation of a proposed forensic facility. Chair (unnamed) opened the session saying the committee would revisit decision points from the prior day and prepare questions for Thursday’s witnesses.
Lead counsel Eric told the committee it must decide who carries the burden and what proof standard should apply in release hearings for people committed after an NGRI finding. He warned that Vermont currently has no statute like this and that “assuming something passes… this shouldn’t be a surprise. And, of course, it will be litigated,” meaning choices the committee makes could face constitutional challenge.
Lawmakers debated two central questions: whether dismissals related to the bill should be with or without prejudice, and whether the committed person should have to prove by a heightened standard that they are no longer dangerous. One committee member argued for dismissals to be with prejudice because “the person has already served that sentence,” while others said they remained ambivalent and left the decision open.
On the evidentiary standard, some members and counsel noted that a majority of other states shift the burden to the committed person and often apply a preponderance standard; others urged retaining a higher clear-and-convincing standard because of public-safety concerns. A senator worried that a lower standard could result in releasing people who remain dangerous; another warned that without a modifier such as “substantial,” even a preponderance standard could become effectively impossible to meet. The committee discussed adding a list of factors the court must consider (treatment history, current medications, support structures, testimony from treating clinicians and recent behavior) to make a lower standard more specific and defensible.
Members also debated whether a forensic facility should be operated by the Commissioner of Corrections, by the Department of Mental Health, or be physically separate from correctional facilities. The committee identified that choice as a major unresolved implementation question and agreed to ask judges and DMH witnesses scheduled for Thursday to address operational and constitutional issues.
On process and timing, counsel said a revised draft could be circulated if changes are not substantial and suggested the committee include a specific clause allowing courts to grant a petition for an earlier hearing if there is a material change in circumstances.
Next steps: the committee will petition bench and agency witnesses for guidance on sequencing the proposed hearings, on whether indigent defendants should have guaranteed counsel in the new proceedings, and on which department should oversee any forensic facility. No formal vote on S.193 occurred at the Feb. 18 meeting.
