Defender General warns S193 could permit indefinite detention without civil‑commitment 'offramp'

BURLINGTON — Defender General Matt Valerio testified before the Judiciary Committee on Thursday that the proposed S193, which would authorize a forensic facility for people found incompetent or not guilty by reason of insanity, must be tightly constrained to meet constitutional due‑process standards.

Valerio, who identified himself at the start of his testimony (“I’m Matt Valerio, defender general.”), said the state needs a secure treatment facility but warned that the bill as written leans toward incarceration rather than rehabilitation. “These are not jails. These are not places to warehouse people who we think are dangerous,” he said, arguing the facility must focus on treatment and restoring competency rather than serving as a substitute for punishment.

Valerio urged two specific fixes: a short, hard timeframe for competency restoration and an explicit requirement that, if restoration cannot be achieved within that period, the state must pursue civil commitment rather than holding a person indefinitely under criminal‑process authority. He told legislators the bill is “50% better” than earlier versions but still lacks clear protections that courts have required in precedent such as Jackson v. Virginia.

Why it matters: Court decisions and federal rules limit how long someone can be detained for competency restoration without moving to civil commitment, Valerio said. He cited a federal provision he described as permitting about a four‑month secure hold in limited circumstances, a Ninth Circuit ruling that brief jail holds awaiting hospital beds may be unlawful, and state examples—California’s two‑year ceiling and Florida’s five‑year rule—to illustrate how other jurisdictions impose bright‑line limits. Without similar limits, he warned, the statute could allow open‑ended detention that would trigger constitutional challenges.

Valerio also pressed a politically and operationally sensitive point: the bill assigns administration to the Commissioner of Corrections. “Why do we have the Commissioner of Corrections overseeing this?” he asked, saying corrections is strong on custody but “does a really bad job with medical care and mental health care and treatment.” He described repeated problems with contracted medical care inside corrections facilities, including staffing shortages, intermittent access to essential medications such as insulin and antibiotics, and multiple recent deaths in custody that his office has investigated.

Committee members pressed Valerio for evidence; one asked for quantitative reports and anonymized incident data, which Valerio said he could provide. He recommended that monitoring of people released from a forensic facility be handled by clinically trained mental‑health workers rather than probation officers, to focus on decompensation and treatment rather than mere compliance.

On timing: The bill requires a court hearing within 48 hours of readmission to a forensic facility. Valerio said 48 hours is feasible if qualified staff can perform evaluations immediately, but he cautioned that the statute’s mandated “forensic risk assessment” should instead require a focused forensic mental‑health assessment that establishes current mental‑illness status and treatment needs rather than only assessing abstract risk.

Valerio flagged additional drafting gaps: the bill is silent about which party bears the burden of proving a person no longer suffers from a qualifying condition, and it should clarify when public defenders may withdraw from cases that move entirely into civil commitment processes.

Committee response and next steps: Members asked whether the Senate had altered the bill; Valerio said the Senate removed several problematic provisions. The committee did not act on S193 at the hearing. Chair remarks closed the session and said the panel would reconvene at 2 p.m. or immediately after the floor session to hear Karen Barber of the Department of Mental Health on S193.

The hearing record shows detailed legal and operational concerns from the defender general about preserving treatment‑focused care, limiting detention duration, clarifying burden and procedures, and assigning oversight and community monitoring to appropriate clinical authorities; the committee will weigh those recommendations as S193 moves forward.