Defender General urges hospital model, not jail, for proposed forensic facility under S.193

Matt Valerio, the Defender General, told the House Corrections and Institutions Committee on April 10 that he supports creating a forensic hospital for people found incompetent or insane at the time of an offense but urged lawmakers to design the facility as a medical treatment center rather than a correctional unit. "We're creating a hospital," Valerio said, "not a jail." He warned the bill as drafted appears to place oversight and many discretionary decisions with the commissioner of corrections rather than public health officials.

Valerio framed the issue around two distinct legal concepts: competency to stand trial and insanity at the time of the offense. Competency concerns whether a defendant can meaningfully participate in court proceedings; insanity refers to the defendant's mental state during the alleged offense. He stressed courts and precedent limit how long a person may be detained for competency restoration and emphasized that jails are often unsuitable for providing the timely, intensive treatment courts expect. "There are two parts of that: number one is the time, number two is jails are not suitable for competency restoration," he said.

The Defender General repeatedly cautioned that implementation details matter. He cited federal and circuit precedent discussed in his testimony that treat continued detention as lawful only when treatment is timely and detention bears a reasonable relation to restoration. Valerio also warned that treating a forensic unit as a jail could prompt immediate litigation: "It would be almost instantaneous with the first client who was subject to it," he said, describing how his office and defense counsel would litigate statutory or constitutional defects.

Committee members pressed Valerio on practical questions: whether the people currently held in Vermont correctional facilities who would qualify for forensic care would fall under the new system (Valerio said likely yes), how long courts could lawfully hold someone for restoration (he pointed to short federal and circuit limits cited in his materials), and whether a small, separate wing staffed properly and supervised by the Department of Mental Health could satisfy constitutional concerns (Valerio said staffing, supervision by mental health professionals, and the overall design could resolve the problem, but the bill's current structural ties to DOC are troubling).

Valerio described two persistent operational gaps driving the problem: a shortage of psychiatric evaluators and the absence of a community supervision mechanism analogous to probation. He said the state currently relies on out‑of‑state tele‑evaluation providers for competency assessments, and that delays are caused by lack of personnel rather than just funding. He proposed creating a small unit within the Department of Mental Health made up of social workers and mental‑health professionals to monitor people released on nonhospitalization orders and move the court for rehospitalization when needed. "We literally get people who have been found incompetent. In a couple of weeks, they get pushed out," Valerio said. "There is nothing akin to that in the Department of Mental Health where people affirmatively check up on these people."

Members raised financing complications: converting an existing facility or wing into a forensic unit can affect Medicaid reimbursement eligibility. One member said that designating a facility as an 'institution for mental disease' for certain patients can trigger loss of Medicaid funding for the whole facility, not just those beds, complicating the finance calculus for using an existing 15–20‑bed unit.

Valerio also criticized the quality of contracted medical services at some correctional facilities, naming past problems with large providers and citing in‑depth investigations his office has conducted into deaths and serious incidents. He warned that simply rebadging a contractor under a new administrative structure would not necessarily produce better clinical outcomes.

The committee did not take any votes during the session. Valerio left members with a choice, he said: pursue an approach that truly creates a hospital model—staffed and supervised by mental‑health professionals under DMH—or risk legal challenges and substandard treatment if the model remains tied to DOC. The committee concluded the afternoon session and deferred further action.