Senate Judiciary debates S.93’s forensic facility, flags due-process and clinical concerns

Montpelier — The Senate Judiciary Committee on Feb. 26 reviewed draft S.93, legislation to establish a forensic facility for a narrow class of criminal defendants, and heard testimony that raised constitutional, clinical and procedural questions.

Jack McCullough, a lawyer with Vermont Legal Aid and director of its Mental Health Law Project, told the committee that the bill "shifts the burden" in ways that could risk unlawful deprivation of liberty and that many core protections are not clearly incorporated into the draft. He urged the panel to define what "competency restoration services" would be, how those services differ from current hospital-based treatment, who would provide them and where they would be delivered.

"We do not need this bill to accomplish the purpose of protecting public safety and potentially having defendants go to trial if they can be made competent to stand trial," McCullough said, adding that current psychiatric treatment under the Department of Mental Health often restores competency without a separate forensic facility. He praised one provision — dismissal of many misdemeanor charges — calling it "a really, really good thing" because it would reduce resource burdens from keeping minor charges pending.

Eric Fitzpatrick of the Office of Legislative Council walked members through version 3.1 of the committee amendment. Fitzpatrick said the draft establishes two tracks — one for defendants found incompetent to stand trial and one for defendants found not guilty by reason of insanity (NGRI) — and limits eligibility largely to cases with lifetime-maximum offenses or to defendants held without bail whose release would create a "substantial risk of bodily injury." He flagged committee decision points remaining in the language, including how to treat people clinicians say cannot be restored to competency and the standard of proof for readmission after a return to the community.

The draft would require periodic competency evaluations while a person is in the facility and would give someone determined not restorable the ability to petition the court for a reevaluation on an annual basis. Fitzpatrick described an expedited readmission procedure for cases where a person restored to competency appears to be regressing after release; as drafted the state would have to show by a preponderance that readmission is warranted — a point that prompted several senators to press for consistency and for a higher standard in multiple places.

Committee members said they want the state — not the detained individual — to carry the burden in commitment and readmission proceedings and agreed in committee discussion to revise language to require the state to meet a "clear and convincing" standard in multiple sections. The chair and counsel noted they would update the draft for consistency.

Members also discussed where services should be provided and who should run them. Several senators expressed concern about placing clinical services inside jails for constitutional and best-practice reasons and asked whether hospitalization under existing statutes (cited in the hearing) would remain an option. Fitzpatrick confirmed the current civil-commitment and criminal-post-finding hospitalization tracks remain available under existing law, and said the forensic-facility track in the bill would be a separate policy choice.

The committee reviewed privacy language that would permit a person's health-care providers to view forensic facility psychiatric assessments "with the person's permission," wording added after counsel review to respect patient control over records. Members also discussed oversight, with a senator proposing the Agency of Human Services as the umbrella overseer to ensure regular consultation between the Department of Corrections and the Department of Mental Health.

No formal floor votes were recorded. In committee policy decisions, members chose to retain language that misdemeanors be dismissed "without prejudice" (preserving the possibility of refiling when relevant) and to direct counsel to revise burden-of-proof language so the state bears the burden at a clear-and-convincing level in key proceedings.

The committee recessed for five minutes to continue later with Karen Barber and other witnesses, and members said they will invite witnesses from Wellpath and the Department of Mental Health to provide clinical and operational detail about competency-restoration services and medication protocols.

What’s next: The committee paused markup to gather additional technical testimony and directed counsel to prepare draft amendments consistent with the committee’s policy choices on dismissal and burden of proof.