House committee reviews S.193 to create forensic facility, focuses on court process and safeguards

The House of Regents and Institutions Committee on April 21 reviewed draft 1.1 of S.193, a bill to establish a forensic facility for certain criminal-justice-involved people and to set court procedures for admission, review and release.

Eric Fitzpatrick of the Office of Legislative Council told the committee the amendment focuses on the court-side process that determines who may be sent to a forensic facility and how they might be released. “This is an attempt to align the procedures with United States Supreme Court requirements,” Fitzpatrick said, citing Jackson v. Indiana and stressing the need for an “off ramp” so people are not detained indefinitely without a constitutionally sufficient process.

Under the draft, a person found incompetent to stand trial who meets qualifying criteria could be sent to the forensic facility. The bill starts the statutory clock from the date of admission and requires competency reevaluations at least every six months; if a facility clinical services director deems a person likely to have regained competency, the facility must seek a re‑evaluation sooner. At the reevaluation hearing the court must find the person either competent — in which case prosecutors may choose to retry the case — or not competent, in which case restoration services continue.

If a court finds a person is not restorable, the bill requires a dangerousness hearing within 60 days informed by a forensic risk assessment. Fitzpatrick said the state's attorney must prove dangerousness by clear and convincing evidence to continue involuntary commitment: “If the state's attorney cannot carry their burden, the court shall order the person's release.” The draft directs courts to order treatment in the least restrictive setting consistent with the forensic risk assessment and treatment needs; that setting could be the forensic facility or another option if it better fits the person’s needs.

Committee members raised several implementation and oversight questions. One recurring issue was which agency or examiner performs forensic risk assessments and whether the Department of Corrections (DOC) — which the bill identifies as custodian for detained people under the proposed arrangement — or the Department of Mental Health (DMH) or an outside contractor would conduct or supervise those assessments. Fitzpatrick said the bill permits contracting out assessments but that the examiner’s identity and independence remain open questions to pose to DOC.

Members also asked whether housing the program under DOC rather than an agency of human services could heighten constitutional concerns about punitive custody versus therapeutic care. Fitzpatrick said other states use both models and that Vermont has no controlling precedent; he recommended maximizing procedural safeguards in the statute to withstand likely constitutional challenges.

The bill includes procedures when people refuse competency restoration services: refusal is not by itself a ground to end evaluation obligations, and six‑month reevaluations would still occur even if a person refuses treatment. The draft also contains provisions, requested by the Center for Crime Victims Services, requiring victim notification of hearings and an opportunity for victims to make their views known; Fitzpatrick said notice would be handled through the state's attorney and the court.

Members questioned the statutory threshold for continued commitment, noting the senate's insertion of language tying continued detention to a “substantial risk of bodily injury” and asking whether broader harms (for example, serious property harm) should also be considered; discussion on that point was ongoing. The NGRI (not guilty by reason of insanity) population is treated differently in the draft: the statute preserves a separate review schedule (initial hearing within 60 days, a six‑month petition window, then longer review intervals such as three and five years), and the clinical services director may initiate reevaluation if the person ceases to be dangerous.

Committee members also pressed implementation logistics for supervision after release. Counsel and members noted pretrial supervision programs are limited in staffing and funding; during the hearing members referenced a prior budget allocation of roughly $660,000 used in part to hire up to five pretrial supervision staff and raised whether adequate resources exist to monitor conditions of release under the new scheme. Fitzpatrick said the statute provides for active monitoring by the commissioner consistent with existing pretrial supervision practices but that precise operational details and capacity would need to be clarified with DOC.

The draft requires agencies to produce rules for facility operations and contains a proposed “check back” (interim reporting) mechanism so agencies return to legislative oversight committees with draft rules and progress reports. Fitzpatrick noted additional technical cross‑references remain to be aligned and that other committees are reviewing sections that fall within their jurisdictions.

No vote or formal action was taken during the hearing; the committee paused for a short break at the session's close. The committee flagged outstanding implementation questions — particularly who conducts forensic risk assessments, supervision capacity, and the statutory scope of “substantial risk” — for follow-up with DOC, DMH and other stakeholders.