Bill Summary – FastDemocracy

BILL AS INTRODUCED                                                        S.225
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                                      S.225
 Introduced by Senator Vyhovsky
 Referred to Committee on
 Date:
 Subject: Crimes; sentencing; decarceration
 Statement of purpose of bill as introduced: This bill proposes to decrease the
 population of incarcerated individuals by repealing Vermont’s habitual
 offender statute, capping all criminal sentences at a maximum of 20 years,
 prohibiting an interruption or revocation of any type of community supervision
 for technical violations, and requiring minority impact statements prior to any
 new criminal law being passed.
    An act relating to criminal sentencing and decarceration
 It is hereby enacted by the General Assembly of the State of Vermont:
 Sec. 1. 13 V.S.A. § 11 is amended to read:
 § 11. HABITUAL CRIMINALS
    A person who, after having been three times convicted within this State of
 felonies or attempts to commit felonies, or under the law of any other state,
 government, or country, of crimes which, if committed within this State, would
 be felonious, commits a felony other than murder within this State, may be
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 sentenced upon conviction of such fourth or subsequent offense to
 imprisonment up to and including life. [Repealed.]
 Sec. 2. 13 V.S.A. § 15 is added to read:
 § 15. MINORITY IMPACT STATEMENTS REQUIRED
    (a) Definition. As used in this section, “covered bill” means a bill that is
 referred to the Senate Committee on Judiciary or the House Committee on
 Judiciary that:
          (1) establishes a new State crime or offense;
          (2) could increase or decrease the number of persons incarcerated in
 State correctional facilities;
          (3) modifies a crime, offense, or the penalties associated with a crime
 or offense established under current State law; or
          (4) modifies procedures under current State law for pretrial detention,
 sentencing, and all forms of community supervision.
    (b) Minority impact statements on legislation. The State Auditor, in
 consultation with the Vermont Sentencing Commission and the Court
 Administrator, shall prepare and submit a minority impact statement to the
 General Assembly on a covered bill prior to the consideration of such bill on
 the floor of the House of Representatives or of the Senate.
    (c) Minority impact statement. A minority impact statement shall include:
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          (1) detailed projections of the impact of the covered bill on the
 populations of pretrial detainees, incarcerated individuals, and individuals
 subject to any form of community supervision, including:
             (A) whether the covered bill would have a negative impact, no
 impact, a positive impact, a minimal impact, or an unknown impact on such
 populations;
             (B) the impact of the covered bill on correctional facilities and
 services, including any changes to the operational costs of correctional
 facilities and any decrease or increase in the population of individuals
 incarcerated in correctional facilities; and
             (C) a statistical analysis of how the covered bill would impact pretrial
 detainees, incarcerated individuals, and individuals subject to any form of
 community supervision, disaggregated by race, ethnicity, disability, gender,
 and sexual orientation, if known;
          (2) an estimate of the fiscal impact of the covered bill on State
 expenditures, including expenditures on the construction and operation of
 correctional facilities for the current fiscal year and the five succeeding fiscal
 years;
          (3) an analysis of any other significant factor affecting the costs of the
 covered bill and its impact on the operations of the components of the State’s
 criminal justice system; and VT LEG #372889 v.1
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       (4) a detailed and comprehensive statement of the methodologies and
 assumptions used in preparing the minority impact statement.
    (d) Annual assessment. Annually, on or before November 15, the State
 Auditor shall prepare and submit to the Senate Committee on Judiciary, the
 House Committees on Judiciary and on Corrections and Institutions, and the
 Joint Legislative Justice Oversight Committee a minority impact assessment
 reflecting the cumulative effect of all relevant changes in the law taking effect
 during the preceding calendar year.
    (e) Public availability. Not later than 30 days after preparing a minority
 impact statement pursuant to subsection (b) of this section, the State Auditor
 shall publish the statement on the website of the Office of the Vermont State
 Auditor.
 Sec. 3. 13 V.S.A. § 2405 is amended to read:
 § 2405. KIDNAPPING
    (a) A person commits the crime of kidnapping if the person:
       (1) knowingly restrains another person with the intent to:
            (A) hold the restrained person for ransom or reward; or
            (B) use the restrained person as a shield or hostage; or
            (C) inflict bodily injury upon the restrained person or place the
 restrained person or a third person in fear that any person will be subjected to
 bodily injury; or VT LEG #372889 v.1
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           (D) sexually assault the restrained person or place the restrained
 person or a third person in fear that any person will be sexually assaulted; or
           (E) facilitate the commission of another crime or flight thereafter; or
        (2) not being a relative of a person under the age of 16 years of age,
 knowingly restrains that person, without the consent of the person’s custodian,
 with the intent to keep the person from his or her the person’s lawful custodian
 for a substantial period.
    (b) Kidnapping is punishable by a maximum sentence of life imprisonment
 of not more than 20 years or a fine of not more than $50,000.00, or both. It is,
 however, an affirmative defense which that reduces the penalty to
 imprisonment for not more than 30 10 years or a fine of not more than
 $50,000.00, or both, that the defendant voluntarily caused the release of the
 victim alive in a safe place before arraignment without having caused serious
 bodily injury to the victim.
 Sec. 4. 13 V.S.A. chapter 53 is amended to read:
                             CHAPTER 53. HOMICIDE
                                        ***
 § 2303. PENALTIES FOR FIRST AND SECOND DEGREE MURDER
    (a)(1) The punishment for murder in the first degree shall be imprisonment
 for:
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           (A) a minimum term of not less than 35 years and a maximum term
 of life; or
           (B) life without the possibility of parole not more than 20 years.
        (2) The punishment for murder in the second degree shall be
 imprisonment for:
           (A) a minimum term of not less than 20 years and a maximum term
 of life; or
           (B) life without the possibility of parole not more than 20 years.
        (3) Notwithstanding any other provision of law, this subsection shall
 apply only if the murder was committed on or after the effective date of this
 act.
    (b) The punishment for murder in the first degree shall be imprisonment for
 life and for a minimum term of 35 years unless a jury finds that there are
 aggravating or mitigating factors which justify a different minimum term. If
 the jury finds that the aggravating factors outweigh any mitigating factors, the
 court may set a minimum term longer than 35 years, up to and including life
 without parole. If the jury finds that the mitigating factors outweigh any
 aggravating factors, the court may set a minimum term at less than 35 years but
 not less than 15 years.
    (c) The punishment for murder in the second degree shall be imprisonment
 for life and for a minimum term of 20 years unless a jury finds that there are VT LEG #372889 v.1
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 aggravating or mitigating factors which justify a different minimum term. If
 the jury finds that the aggravating factors outweigh any mitigating factors, the
 court may set a minimum term longer than 20 years, up to and including life
 without parole. If the jury finds that the mitigating factors outweigh any
 aggravating factors, the court may set a minimum term at less than 20 years but
 not less than 10 years.
    (d)(b)(1)(A) Before the court sentences a defendant for first or second
 degree murder, a jury shall consider the aggravating and mitigating factors set
 forth in subsections (e)(c) and (f)(d) of this section. The court shall allow the
 parties to present evidence and argument concerning the aggravating and
 mitigating factors and may empanel a new jury to consider them or conduct the
 hearing before the same jury that considered the guilt of the defendant.
          (B) The parties shall file notice of intent to present evidence
 regarding specific aggravating and mitigating factors about which the parties
 have knowledge not less than 60 days before the hearing. A party may not
 present evidence on the presence of that aggravating or mitigating factor unless
 notice has been provided as required by this subdivision.
          (C) The jury shall make findings concerning aggravating and
 mitigating factors and determine whether the aggravating factors outweigh the
 mitigating factors or the mitigating factors outweigh the aggravating factors.
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 The findings shall be based on the evidence on the criminal charges presented
 to the jury at the sentencing hearing and at the trial.
          (D) The burden shall be on the State to prove beyond a reasonable
 doubt the presence of aggravating factors or the absence of mitigating factors
 and to prove beyond a reasonable doubt that the aggravating factors outweigh
 the mitigating factors.
       (2) After the jury renders a verdict on the aggravating and mitigating
 factors, the court shall allow the parties to present arguments concerning
 sentencing recommendations. The court shall make written findings of fact
 summarizing the offense and the defendant’s participation in it. The findings
 shall be based on the evidence taken at trial, the evidence presented on
 aggravating and mitigating factors at the sentencing hearing, and information
 from the presentence report. The court shall impose a sentence consistent with
 subsection (b) or (c) of this subsection and with the jury’s findings concerning
 aggravating and mitigating factors.
    (e)(c) Aggravating factors shall include the following:
       (1) The murder was committed while the defendant was in custody
 under sentence of imprisonment.
       (2) The defendant was previously convicted of a felony involving the
 use of violence to a person.
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       (3) The murder was committed while the defendant was engaged in the
 commission of, or in an attempt to commit, or in immediate flight after
 committing a felony.
       (4) The victim of the murder was particularly weak, vulnerable, or
 helpless.
       (5) The murder was particularly severe, brutal, or cruel.
       (6) The murder involved multiple victims.
       (7) The murder was random, predatory, or arbitrary in nature.
       (8) Any other factor that the State offers in support of a greater
 minimum sentence.
    (f)(d) Mitigating factors shall include the following:
       (1) The defendant had no significant history of prior criminal activity
 before sentencing.
       (2) The defendant was suffering from a mental or physical disability or
 condition that significantly reduced his or her the defendant’s culpability for
 the murder.
       (3) The defendant was an accomplice in the murder committed by
 another person and his or her the defendant’s participation was relatively
 minor.
       (4) The defendant, because of youth or old age, lacked substantial
 judgment in committing the murder.
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          (5) The defendant acted under duress, coercion, threat, or compulsion
 insufficient to constitute a defense but which that significantly affected his or
 her the defendant’s conduct.
          (6) The victim was a participant in the defendant’s conduct or consented
 to it.
          (7) Any other factor that the defendant offers in support of a lesser
 minimum sentence.
      (g)(e) Subsections (b)–(f)(d) of this section shall apply only if the murder
 was committed before the effective date of this act, and:
          (1) the defendant was not sentenced before the effective date of this act;
 or
          (2) the defendant’s sentence was stricken and remanded for resentencing
 pursuant to the Vermont Supreme Court’s decision in State v. Provost,
 2005 VT 134 (2005).
                                          ***
 § 2311. AGGRAVATED MURDER DEFINED
      (a) A person is guilty of aggravated murder if he or she the person commits
 a first or second degree murder, as defined in section 2301 of this title, and at
 the time of his or her the person’s actions, one or more of the following
 circumstances was in fact present:
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       (1) The murder was committed while the defendant was in custody
 under sentence for murder or aggravated murder.
       (2) The defendant had, prior to commencement of the trial for
 aggravated murder, been convicted of another aggravated murder or murder in
 any jurisdiction in the United States and territories.
       (3) At the time of the murder, the defendant also committed another
 murder.
       (4) At the time of the murder, the defendant knowingly created a great
 risk of death to another person or persons.
       (5) The murder was committed for the purpose of avoiding or
 preventing lawful arrest by a law enforcement officer of any person, or
 effecting an escape by any person from lawful custody of a law enforcement
 officer.
       (6) The murder was committed by a person hired for such purpose in
 return for anything of value. Both the person hired and the person hiring him
 or her the person are guilty of aggravated murder.
       (7) The victim of the murder was known by the person to be a
 firefighter, a member of emergency medical personnel as defined in 24 V.S.A.
 § 2651(6), a person employed in any capacity in or about a correctional
 facility, or a law enforcement officer, and was performing his or her the
 person’s official duties.
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       (8) The murder was committed in perpetrating or attempting to
 perpetrate sexual assault or aggravated sexual assault.
    (b) In a prosecution for aggravated murder, the State shall allege and prove
 beyond a reasonable doubt one or more of the circumstances enumerated in
 subsection (a) of this section.
    (c) The punishment for aggravated murder shall be imprisonment for life
 and for no lesser term not more than 20 years. The court shall not place on
 probation or suspend or defer the sentence of any person convicted of
 aggravated murder. A person sentenced under this section shall not be eligible
 for parol