Legal-aid and disability advocates urge changes to S193, warn of prison-style forensic facility for unconvicted people

The House Judiciary Committee on Thursday continued consideration of S193, a bill that would authorize the Department of Corrections to establish a secure forensic facility for certain people involved in the criminal justice system and found incompetent to stand trial or acquitted by reason of insanity.

In testimony, Jack McCulla, director of the Mental Health Law Project at Vermont Legal Aid, and Laura Kushman, an attorney at Disability Rights Vermont and Vermont’s mental‑health care ombudsman, urged lawmakers to revise or reject the proposal. They raised constitutional and civil‑rights concerns, questioned the evidence that the facility would improve competency restoration, and pressed for clearer oversight and reporting requirements.

Why it matters: The bill would move some decisionmaking about competency restoration and continued confinement into a DOC‑administered facility rather than the Department of Mental Health or family‑court processes. Advocates warned that doing so risks indefinite confinement of people who have not been convicted of a crime and could run afoul of federal ADA requirements and the Supreme Court’s Olmstead integration mandate unless the state demonstrates that a less‑restrictive option is not appropriate.

McCulla, who has represented people in involuntary mental‑health proceedings for decades, told the committee that “in the eyes of the law, everybody affected by this bill is innocent” and argued that existing psychiatric treatment has restored many defendants to competency under current statutes. He said the bill duplicates parts of Title 18, lowers procedural protections in places, and contains several provisions that “shift the burden to the defendant” in ways that raise due‑process concerns. McCulla also questioned statements in the draft that would make the rules of evidence inapplicable to certain hearings and asked why the Department of Corrections would be the lead agency for psychiatric treatment when other agencies provide care.

Kushman called the measure a proposal that “would create a specialized prison for disabled individuals who have not been convicted of crimes,” and said the bill’s current language allowing indeterminate commitment and placing the onus on a person to prove they are no longer a risk are legally and ethically fraught. She urged that any facility housing this population be explicitly subject to the same independent oversight, critical‑incident reporting, and certificates‑of‑need processes that govern other mental‑health settings.

Both witnesses urged lawmakers to focus on alternatives and gaps in existing services. McCulla and Kushman noted the state’s Vermont Psychiatric Care Hospital and River Valley Therapeutic Community Residence as existing secured options and said under‑investment and underuse of community resources, not the mere absence of a facility type, drive many problems the bill seeks to address. McCulla cited an estimate from the Department of Mental Health that the program might serve about six people a year but said the bill provides no budget or facility plan and could expand that population without limits.

Committee members pressed witnesses on specifics. McCulla criticized the bill’s 48‑hour hearing timeline as too short for preparation and pointed to Title 18 provisions that allow 10 to 20 days for independent psychiatric evaluations. Kushman referenced constitutional protections and the standard set out in Sell v. United States when discussing forced psychotropic medication and said the bill’s current language does not satisfy that strict test.

On victims’ participation, witnesses cautioned that emotional victim testimony may be prejudicial to determinations about clinical treatment needs; committee members said victim views are advisory and permissible for judges to consider.

The hearing included a tense exchange after Kushman said she had observed ableist subtext in prior testimony; committee members asked for clarification and some objected to the general characterization. Both witnesses said they would submit written testimony and case citations to the committee.

What’s next: Committee members said they expect another version of the bill and will invite additional testimony when the revised language is available. The committee recessed for a 10‑minute break at the session’s close.

Sources: Testimony by Jack McCulla (Vermont Legal Aid) and Laura Kushman (Disability Rights Vermont) before the House Judiciary Committee on April 9. Direct quotes and procedural points are taken from the committee's transcript.