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BILL AS PASSED BY SENATE 2007-2008

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S.97

AN ACT RELATING TO CORRECTIONAL FACILITIES

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  9 V.S.A. § 4501 is amended to read:

§ 4501.  DEFINITIONS

As used in this chapter:

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(10)  “Undue burden” means significant difficulty or expense.  In determining whether an action would result in an undue burden, the following factors shall be considered:

(A)  The nature and cost of the action needed.

(B)  The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures, or any other impact of the action on the operation of the site.

(C)  The geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity.

(D)  If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; and the number, type and location of its facilities.

(E)  If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure and functions of the workforce of the parent corporation or entity.

(F)  In claims brought under this chapter by individuals in the custody of the commissioner of the department of corrections, the legitimate institutional and security concerns of the correctional facility.

Sec. 2.  9 V.S.A. § 4506(e) is added to read:

§ 4506.  ENFORCEMENT; CIVIL ACTION

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(e)(1)  Except as provided in subdivision (2) of this subsection, an inmate incarcerated in a department of corrections facility shall not bring an action for violation of this chapter unless the inmate has exhausted all grievance procedures pursuant to rules adopted by the department under section 854 of Title 28.

(2)  Subdivision (1) of this subsection shall not apply if the inmate demonstrates that:

(A)  the corrections facility does not maintain a relevant grievance procedure;

(B)  more than 60 days have passed from the date that the grievance was originally filed, and the department of corrections has not rendered a final determination;

(C)  the health or safety of the inmate would be jeopardized otherwise; or

(D)  requiring exhaustion would subject the inmate to substantial and imminent retaliation.

Sec. 3.  13 V.S.A. § 1027 is amended to read:

§ 1027.  DISTURBING PEACE BY USE OF MAIL, TELEPHONE, OR
  OTHER ELECTRONIC COMMUNICATIONS

(a)  A person who, with intent to terrify, intimidate, threaten, harass, or annoy, makes contact by means of a telephonic mail, telephone, or other electronic communication with another and (i) makes any request, suggestion, or proposal which is obscene, lewd, lascivious, or indecent; (ii) threatens to inflict injury or physical harm to the person or property of any person; or (iii) disturbs, or attempts to disturb, by repeated anonymous mailings, telephone calls, or other electronic communications, whether or not conversation ensues, the peace, quiet, or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months or both.  If the defendant has previously been convicted of a violation of this section or of an offense under the laws of another state or of the United States which would have been an offense under this act if committed in this state, the defendant shall be fined not more than $500.00 or imprisoned for not more than six months, or both.

(b)  An intent to terrify, threaten, harass, or annoy may be inferred by the trier of fact from the use of obscene, lewd, lascivious, or indecent language or the making of a threat or statement or repeated anonymous mailings, telephone calls or other electronic communications as set forth in this section and any trial court may in its discretion include a statement to this effect in its jury charge.

(c)  An offense committed by use of a mail, telephone, or other electronic communication device as set forth in this section shall be considered to have been committed at either the place where the telephone call or calls originated or at the place where the mailings, communication or communications, or calls were received.

Sec. 4.  4 V.S.A. § 1102 is amended to read:

§ 1102.  JUDICIAL BUREAU; JURISDICTION

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(b)  The judicial bureau shall have jurisdiction of the following matters:

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(11)  violations of 18 V.S.A. § 4234b(b), relating to selling ephedrine base, pseudoephedrine base, or phenylpropanolamine base;

(12)  violations of 18 V.S.A. § 4249(f), relating to the introduction of tobacco or tobacco products into a correctional facility.

Sec. 5.  18 V.S.A. § 4249(f) is added to read:

§ 4249.  TRANSPORTATION OF ALCOHOL OR REGULATED DRUGS
  INTO PLACES OF DETENTION

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(f)  No person shall knowingly carry or introduce or cause to be carried or introduced tobacco or tobacco products into a correctional facility.  An individual who violates this subsection shall be subject to a civil penalty of not more than $1,000.00 for the first offense and $2,500.00 for any subsequent offense.  An action under this subsection shall be brought in the same manner as for a traffic violation pursuant to chapter 24 of Title 23.

Sec. 6.  28 V.S.A. § 802 is amended to read:

§ 802.  CORRESPONDENCE OF INMATES

(a)  Any authorized employee of any correctional facility shall have the right to inspect all correspondence by or to inmates of the facility.  The employee shall have the right to withhold and prevent the transmission of material intended to be sent through the mails by or to an inmate if the material is contraband as defined by the rules of the facility or constitutes a clear and present danger to the security of the facility.

(b)  Notwithstanding the provisions of subsection (a) of this section, any correspondence from an inmate to any public official of the state or of the United States, shall not be impeded in its transmission, nor shall it be inspected, opened, copied, duplicated, photographed, or examined in any way.

(c)  An inmate shall not correspond through the mail with another inmate committed to the custody and supervision of the department of corrections, whether in the same facility or in a different facility, except as follows:

(1)  To communicate with immediate family members who are inmates also in the custody and supervision of the department of corrections, subject to the prior approval of the superintendent or the superintendent’s designee.

(2)  To communicate with other inmates where the inmate’s classification or treatment team deems the correspondence in the best interests of both parties.

(3)  To communicate with another inmate regarding legal matters, so long as the superintendent or his or her designee knows the second inmate customarily offers legal advice to other inmates.

(4)  To correspond with other inmates, so long as the correspondence has been approved by the superintendent or the superintendent’s designee at his or her sole discretion.

(d)  Negative contact list.

(1)  Except as provided in subsection (b) of this section, an inmate shall not correspond with any individual on the department of corrections’ negative contact list.

(2)  An individual may be added to the negative contact list by notifying the department of corrections in writing that he or she does not wish to receive any communications from a particular inmate or group of inmates.

(3)  A parent or authorized legal guardian of a minor may add the minor child to the negative contact list by notifying the department of corrections in writing that he or she does not wish the minor child to receive any communication from a particular inmate or group of inmates.  If the inmate is a parent of the minor, the inmate shall be presumed to have the right to have contact with the minor, unless the facility superintendent, in consultation with the director of victim services, finds the correspondence would not be in the best interests of the child.

Sec. 7.  JOINT LEGISLATIVE CORRECTIONS OVERSIGHT
 COMMITTEE

(a)  During the 2007 interim, the joint legislative corrections oversight committee shall engage policymakers and social scientists to pursue and obtain current and accurate data of the prevalence of current and recent inmates with serious mental illness.  The production of this data is necessary for the general assembly to plan for the future acute care needs of all persons with serious mental illnesses, including persons committed to corrections’ custody. 

(b)  The committee shall:

(1)  Study the number of mental health hospital beds needed, including those required by:

(A)  Inmates with acute mental health treatment needs.

(B)  Criminal defendants committed for pre-trial forensic evaluation in an inpatient setting.

(C)  Criminal defendants found incompetent to stand trial or insane at the time of the offense.

(2)  Review policies from other states that address issues of mental health in inmate populations.  The committee may consult with the National Council of State Legislatures or the Council of State Governments to meet the requirements of this subdivision.

(3)  Consider whether a separate inpatient psychiatric facility, administered by the agency of human services, for inmates with severe mental illness would address the mental health needs of the inmate population.

(4)  Consider whether “serious mental illness,” as defined in subdivision 906(1) of Title 28, should be amended to include all forms of developmental disabilities, including mental retardation, traumatic brain injury, autism, various forms of dementia, and other mental impairments that significantly and negatively impact daily functioning.

(c)  The committee shall report its findings and recommendations for legislation to the general assembly on or before January 15, 2008.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us