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Journal of the Senate

________________

Tuesday, March 18, 2008

The Senate was called to order by the President.

Devotional Exercises

Devotional exercises were conducted by Rabbi Tobi Weisman of Montpelier.

Pledge of Allegiance

Pages Emma Masi and Gab Sheir then led the members of the Senate in the pledge of allegiance.

Message from the House No. 37

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

     I am directed to inform the Senate the House has passed bills of the following titles:

     H. 338.  An act relating to state purchasing of apparel, footwear or textiles.

     H. 636.  An act relating to embezzlement by a public official.

     H. 641.  An act relating to nursing mothers in the workplace.

In the passage of which the concurrence of the Senate is requested.

The House has considered a bill originating in the Senate of the following title:

S. 108.  An act relating to the election of U.S. Representative and U.S. Senator by the instant runoff voting method.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the Senate is requested.

Bill Introduced

Senate bill of the following title was introduced, read the first time and referred:


S. 367.

By Senators Flanagan, Ayer, Bartlett, Campbell, Carris, Condos, Cummings, Doyle, Giard, Hartwell, Illuzzi, Kittell, Lyons, MacDonald, McCormack, Miller, Racine, Shumlin, Snelling, Starr and White,

An act relating to services for individuals with traumatic brain injury.

To the Committee on Health and Welfare.

Committee Bills Introduced

Senate committee bills of the following titles were severally introduced, read the first time, and, under the rule, placed on the Calendar for notice tomorrow

S. 368.

By the Committee on Health and Welfare,

An act relating to the addition of new types of disinfectants to public water systems.

S. 370.

By the Committee on Agriculture,

An act relating to funding for a food processing center and the UVM Board of Trustees.

S. 371.

By the Committee on Education,

An act relating to the creation of an agency of education and the elimination of the state board of education.

S. 373.

By the Committee on Finance,

An act relating to full funding of decommissioning the costs of a nuclear plant.

Bills Referred to Committee on Appropriations

Senate bills of the following titles, appearing on the Calendar for notice and carrying appropriations or requiring the expenditure of funds, under the rule were severally referred to the Committee on Appropriations:

S. 229.

An act relating to access to public records.

S. 331.

An act relating to workforce development for green industries.

S. 345.

An act relating to lowering the cost of workers’ compensation insurance.

Bills Referred to Committee on Finance

Senate bills of the following titles, appearing on the Calendar for notice, and affecting the revenue of the state, under the rule were severally referred to the Committee on Finance:

S. 15.

An act relating to removal of tuition costs from the excess spending penalty of Act 60.

S. 297.

An act relating to clarifying the definition  of “stiff hitch” in the motor vehicle statutes.

Bills Referred

House bills of the following titles were severally read the first time and referred:

H. 338.

An act relating to state purchasing of apparel, footwear or textiles.

To the Committee on Government Operations.

H. 636.

An act relating to embezzlement by a public official.

To the Committee on Judiciary.

H. 641.

An act relating to nursing mothers in the workplace.

To the Committee on Economic Development, Housing and General Affairs.

Joint Resolution Placed on Calendar

J.R.S. 57.

Joint Senate resolution of the following title was offered, read the first time and is as follows:

   By Senators Condos, Ayer, Bartlett, Campbell, Carris, Collins, Cummings, Flanagan, Giard, Hartwell, Illuzzi, Kittell, MacDonald, McCormack, Nitka, Racine, Shumlin and White,

     J.R.S. 57.  Joint resolution requesting the Agency of Administration to post all state contracts and grants in full text on the internet.

Whereas, in July 2007, two of the least likely political allies in the United States, conservative Grover Norquist, President of Americans for Tax Reform, and the consumer advocate Ralph Nader drafted a letter to the nations’ governors urging far greater transparency in state government financial operations, and

Whereas, the letter’s authors cited a 2005 executive order that Indiana Governor Mitch Daniels issued, expanding the scope of that state government’s financial transactions that is posted on the Internet, and

Whereas, the fiscal data now posted on an Indiana state government web site include for each year:  the total number of state contracts, their monetary value, and the number and percentage of Indiana businesses and out-of-state businesses awarded state contracts, and

Whereas, pursuant to the Federal Funding Accountability and Transparency Act of 2006 (the act), a new searchable website was established, enabling the public to identify all federal grants and contracts, and

Whereas, although the act does not provide for the posting of the full text of grants and contracts, it represents an important first step toward greater public disclosure, and

Whereas, during his tenure as director of the Office of Federal Management and Budget, Mitch Daniels advocated the posting of the full text of contracts with appropriate redaction of national security-related details, and

Whereas, Vermonters have a right to know how Vermont’s government spends their dollars, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly urges the Agency of Administration, in an effort to achieve the greatest possible transparency in the state’s fiscal transactions, to post the full text of its contracts and grants, in all fields of endeavor, in a searchable format on the Internet, and be it further

Resolved:  That the Secretary of State be directed to send a copy of this resolution to the Governor, to the Secretary of the Agency of Administration, and to the Vermont League of Cities and Towns.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.

Joint Resolution Placed on Calendar

J.R.H. 54.

Joint resolution originating in the House of the following title was read the first time and is as follows:

Joint resolution urging Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets.

Whereas, thousands of Vermonters rely on heating oil to heat their homes and businesses and on gasoline to operate their cars and farm machinery, and

Whereas, the retail price of these refined petroleum products is premised, in large measure, on the wellhead price of crude oil that has in recent weeks hovered in the historically high $100.00‑per‑barrel range, and

Whereas, on February 19, some March futures’ contracts for gasoline and heating oil, as sold on the New York Mercantile Exchange, rose to levels that were predicated on crude oil barrel prices exceeding $100.00 per barrel, and

Whereas, a major contributing factor to the escalating cost of crude oil is the so-called “Enron Loophole” (7 U.S.C. § 2(h)(3)), a statutory amendment to the Commodity Exchange Act, which Congress enacted as part of the Commodity Futures Modernization Act in December 2000, at the behest of the large commercial energy traders, which exempts from the regulatory jurisdiction of the federal Commodities Futures Trading Corporation (CFTC) “all agreements, contracts and transactions in energy and metals that are traded on electronic facilities between eligible commercial entities,” and

Whereas, the statute refers to these electronic facilities (or markets) as exempt commercial markets (ECM), and the CFTC’s jurisdiction is limited to matters pertaining to fraud and price manipulation and a requirement that incidents of an ECM performing a significant price discovery function “be reported publicly,” and

Whereas, the principal ECM is the Intercontinental Exchange (ICE), formed in 2000, and according to a June 2006 report of the U.S. Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations, entitled “The Role of Market Speculation in Rising Gas and Oil Prices: The Need to Put the Cop Back on the Beat,” as of December 2005 is the largest over‑the‑counter (OTC) trader for energy commodities “with over 9,300 active screens at over 1,000 participating firms and over 440 futures participant firms,” and

Whereas, as the June 2006 report explained, unlike other OTC exchanges, “neither the CFTC nor the OTC trading facility itself monitors trading activity” of an ECM “to detect and deter fraud and price manipulation,” and “key trading information is not disclosed to the CFTC or the public,” and

Whereas, “although ICE discloses to the CFTC and subscribers of its data services certain information about posted bids, offers, and completed trades, other critical data routinely reported by the regulated exchanges do not have to be filed with the CFTC,” and

Whereas, the report cited the Enron scandal “as clear evidence of how a few sophisticated, unscrupulous traders can harm not only other market participants, but also the public at large by artificially increasing oil prices,” and further estimated that $20.00 of the price of a barrel of oil can be attributed to crude oil futures, and

Whereas, in June 2007, the same congressional subcommittee issued another report entitled “Excessive Speculation in the Natural Gas Market,” reflecting similar problems in this energy market, and

Whereas, one of the 2007 report’s recommendations stated “Congress should eliminate the ‘Enron Loophole’” and said that “experience since passage of the Commodity Futures Modernization Act of 2000, demonstrates there is no sound rationale for exempting electronic energy exchanges from regulatory oversight,” and

Whereas, both reports make clear the substantial role of market speculation on price increases in the international energy market, and the New England Fuel Institute has estimated that $1.00 of the retail purchase price of a gallon of gasoline is due to energy speculation, and

Whereas, legislative initiatives in Congress, including a bill that U.S. Representative Peter Welch introduced, H.R. 4066, “To Amend the Commodity Exchange Act to Close the Enron Loophole, Prevent Price Manipulation and Excessive Speculation in the Trading of Energy Commodities,” and a parallel U.S. Senate bill that U.S. Senator Carl Levin sponsored, S. 2058, both seek to end the Enron Loophole, and

Whereas, although neither of these measures has moved forward in the legislative process, the 2007 farm bill conferees have before them language to reverse the Enron Loophole, but this provision is not considered essential to the farm bill’s final language, and

Whereas, should the Enron Loophole language not be included in the 2007 farm bill then Congress should adopt either H.R. 4066 or S. 2058, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly urges Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets, and be it further

Resolved:  That the secretary of state be directed to send a copy of this resolution to the Vermont Congressional Delegation.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.

Bill Passed

S. 168.

Senate bill entitled:

An act relating to operating a motor vehicle under the influence of alcohol or drugs.

Was taken up.

Thereupon, pending third reading of the bill, Senator Illuzzi moved that the bill be amended by adding a new section to be numbered Sec. 2 to read as follows:

Sec. 2.  23 V.S.A. § 1201(a)(3) is amended to read:

§ 1201. Operating vehicle under the influence of intoxicating liquor or other substance; criminal refusal

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1) when the person's alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2) when the person is under the influence of intoxicating liquor; or

(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

* * *

Thereupon, pending the question, Shall the bill be amended as recommended by Senator Illuzzi, Senator Illuzzi requested and was granted leave to withdraw his proposal of amendment.

Thereupon, the bill was read the third time and passed.

Third Reading Ordered

J.R.H. 45.

Senator Collins, for the Committee on Education, to which was referred joint House resolution entitled:

Joint resolution urging congress to repeal the planned competitive loan auction pilot program for the federal family education loan program’s plus loans to parent.

Reported that the joint resolution ought to be adopted in concurrence.

Thereupon, the joint resolution was read the second time by title only pursuant to Rule 43, and third reading of the joint resolution was ordered.

Bill Amended; Third Reading Ordered

S. 360.

Senator Sears, for the Committee on Judiciary, to which was referred Senate bill entitled:

An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs.

     Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  SHORT TITLE

This act may be known as “The Justice Reinvestment Act.”

Sec. 2.  PURPOSE, FINDINGS, AND INTENT

(a)  It is the purpose of this act to reduce recidivism, increase public safety, and reduce corrections costs by increasing substance abuse treatment, vocational training, and transitional housing for misdemeanants and persons who have committed nonviolent felonies as defined in section 205 of Title 28.

(b)  The general assembly finds that:

(1)  Vermont’s incarcerated population is growing at an unsustainable rate.

(2)  Property and drug offenders are the fastest growing segment of the prison population.  Between 2000 and 2006, over one-half the increase in the felony prison population was due to property and substance abuse offenses.

(3)  Seventy-seven percent of those sentenced for a property or drug felony have a substance abuse disorder.  Two-thirds of them report having received mental health treatment in the past.  Fifty-five percent report being frequently unemployed prior to incarceration.

(4)  Of those incarcerated for a property or drug felony, only 13 percent are receiving treatment.

(c)  The general assembly further finds that:

(1)  As the public inebriate study committee outlined in its report, the Vermont legislature enacted the Alcohol Services Act in 1978 in order to decriminalize public intoxication and create a program to place public inebriates in treatment rather than jail.  In 1977, the last full year prior to the Act’s passage, 550 persons were jailed after being charged with public intoxication.  However, by 2006, 2,322 persons out of 4,179 screened had been placed in protective custody without being charged with a crime, a substantial increase in both total cases and incarcerations.

(2)  As the public inebriate study committee concluded, the Alcohol Services Act has produced results contrary to the legislature’s intent.  The inebriate program established by the act does not work effectively, except in selected areas where staffed shelters exist.

(3)  It is imperative that a new approach to public inebriation be taken, because it is unconscionable that in the 21st century persons are incarcerated who have not committed a crime.

(d)  The general assembly further finds that:

(1)  Each month approximately 70 inmates meet the criteria for reentering the community under the supervision of the commissioner of corrections.  However, almost one-half are not released because of insufficient housing options.

(2)  For many low risk offenders, studies show that a minimum sentence is likely to deter reoffense, and that a longer sentence does not decrease the likelihood of reoffense.  Therefore, statute authorizes the commissioner of corrections to release certain offenders 90 days prior to the minimum sentence date.  However, on average, eligible inmates are not released until 53 days prior to the minimum sentence date.

(e)  Therefore, in order to reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders, it is the intent of the general assembly to:

(1)  increase substance abuse treatment services, vocational training, and transitional housing available to offenders;

(2)  provide for careful screening and assessment of offenders in order to connect those with high needs with appropriate treatment programs, and to ensure that those who do not need treatment are not required to participate; 

(3)  provide incentives for offenders to engage in positive behaviors; and

(4)  establish processes for reducing incarceration time when appropriate. 

Sec. 3.  28 V.S.A. § 1(b) is amended to read:

(b)  The department shall formulate its programs and policies recognizing that almost all criminal offenders ultimately return to the community, and that the traditional institutional prisons fail to reform or rehabilitate, operating instead to increase the risk of continued criminal acts following release.  The department shall develop and implement a comprehensive program which will provide necessary closed custodial confinement of frequent, dangerous offenders, but which also will establish as its primary objective the disciplined preparation of offenders for their responsible roles in the open community.  The department shall ensure that the comprehensive program required by this subsection includes a process by which each offender sentenced to any term of imprisonment other than for life without parole, within 30 days after receiving his or her sentence, shall begin to develop and implement a plan preparing for return to the community.  The department shall assess each offender for substance abuse treatment needs, using an assessment tool designed to assess the suitability of a broad range of treatment services, and use the results of this assessment in preparing the reentry plan.  The department may assess an offender sentenced to a minimum term of more than five years later than 30 days after receiving the sentence but at least within a year of receiving the sentence.

Sec. 4.  28 V.S.A. § 102(b) is amended to read:

(b)  The commissioner is charged with the following powers:

* * *

(5)  To order the assignment and transfer of persons committed to the custody of the commissioner to correctional facilities, including out-of-state facilities.

Sec. 5.  28 V.S.A. § 202 is amended to read:

§ 202.  POWERS AND RESPONSIBILITIES OF THE COMMISSIONER REGARDING PROBATION

The commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

(1)  To maintain general supervision of persons placed on probation, and to prescribe rules and regulations, consistent with any orders of the court, governing the conduct of such persons;

(2)  To supervise the administration of probation services and establish policies and standards and make rules and regulations regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, or transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation.

Sec. 6.  28 V.S.A. § 205 is amended to read:

§ 205.  PROBATION

(a)(1)  After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

(2)  The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(3)(A)  The term of probation for nonviolent felonies shall not exceed the statutory maximum term of imprisonment for the offense unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(B)  As used in this subdivision, "nonviolent felonies" means an offense which is not:

(i)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(ii)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

(4)  Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.

(5)  The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation.  A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.

(b)  The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request, and receive from the department of corrections information regarding the offender's general compliance with the specific conditions of probation. Nothing in this section shall require the department of corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.

(c)(1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the only conditions of probation shall be that the probationer:

(A)  register with the department of corrections’ probation and parole office in his or her district;

(B)  notify the probation officer of his or her current address each month; and

(C)  not have probable cause found for a criminal offense during the term of probation.

(2)  As used in this subsection, “qualifying offense” means:

(A)  Unlawful mischief under 13 V.S.A. § 3701.

(B)  Retail theft under 13 V.S.A. §§ 2575 and 2577.

(C)  Operating after suspension or revocation of license under 23 V.S.A. § 674(a).

(D)  Bad checks under 13 V.S.A. § 2022.

(E)  Theft of services under 13 V.S.A. § 2582.

(F)  Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(G)  Theft of rented property under 13 V.S.A. § 2591.

(H)  Operation without consent of owner under 23 V.S.A. § 1094(a).

(I)  Petit larceny under 13 V.S.A. § 2502.

(J)  Negligent operation of a motor vehicle under 23 V.S.A. § 1091(a).

(K)  False reports to law enforcement under 13 V.S.A. § 1754.

(L)  Setting fires under 13 V.S.A. § 508.

(M)  A first offense of a minor’s misrepresenting age, procuring, possessing, or consuming liquors under 7 V.S.A. § 657.

(N)  Simple assault by mutual consent under 13 V.S.A. § 1023(b).

(O)  Unlawful trespass under 13 V.S.A. § 3705(a).

(P)  A first offense of possession under 18 V.S.A. § 4230(a)(1).

Sec. 7.  28 V.S.A. § 252(b) is amended and (d) is added to read:

(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

* * *

(16)  Satisfy any other conditions reasonably related to his or her rehabilitation.  The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation.

(d)  The commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term, and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program, or attained a goal or goals specified by the conditions of probation.  The commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made at the sole discretion of the commissioner pursuant to a rule adopted by the commissioner under 3 V.S.A. chapter 25.

Sec. 8.  28 V.S.A. § 256 is added to read:

§ 256.  CASELOAD CAPACITY; HIGH RISK OFFENDERS

(a)  The following staff-to-offender risk management caseload range capacities are established in the department:

(1)  Youth statutory designation:  one officer per 20 offenders.

(2)  Furlough, supervised community sentence, intensive phase:  one officer per 30–45 offenders.

(3)  Furlough, supervised community sentence, maintenance phase: one officer per 35–55 offenders.

(4)  Probation or parole, offenses involving sex or violence:  one officer per 40–50 offenders.

(5)  High risk probation or parole, nonviolent offenses:  one officer per 45–60 offenders.

(b)  If the caseload range capacities established in subsection (a) of this section are exceeded for greater than 60 days:

(1)  the commissioner shall report to the general assembly the causes for the excess and proposals for addressing it; and  

(2)  the department shall have the authority, if the district manager believes that the excess will not be eliminated within 60 days, to hire persons from the state's position vacancy pool as limited service employees for an initial period of up to one year.  The initial period may be extended for up to two more years, if the department deems it necessary. 

(c)  Each time a position is established under subdivision (b)(2) of this section, the commissioner shall report it at the next meeting of the joint fiscal committee.  The costs for each position shall be presented in the department’s budget adjustment proposal, and, if the positions are necessary for an ongoing period, in the department’s annual budget request.  

Sec. 9.  28 V.S.A. § 403(1) is amended to read:

(1)  To supervise and control persons placed on parole, subject to the rules and orders of the parole board as to the conditions of parole.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, or transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole;

Sec. 10.  33 V.S.A. § 708 is amended to read:

§ 708.  TREATMENT AND SERVICES

* * *

(d)  A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1)  The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2)  No approved substance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e)  No person shall be lodged in a lockup or community correctional center under subsection (d) of this section without first being evaluated by a substance abuse crisis team, a designated substance abuse counselor, a clinical staff person of an approved substance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

(f)  No lockup or community correctional center shall refuse to admit an incapacitated person in protective custody whose admission is requested by a law enforcement officer, in compliance with the conditions of this section.

(g)  Notwithstanding subsection (d) of this section, a A person under 18 years of age who is judged by a law enforcement officer to be incapacitated and, who has not been charged with a crime shall not be held at a lockup or community correctional center. If needed, and for whom treatment is not readily available the person shall be released to his or her parent or guardian.  If the person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of chapter 55 of this title.  The official in charge of an adult jail or lockup shall notify the director of the office of drug and alcohol abuse of any person under the age of 18 brought to an adult jail or lockup pursuant to this chapter.

(h)  If an incapacitated person in protective custody is lodged in a lockup or community correctional center, his or her family or next of kin shall be notified as promptly as possible.  If the person is an adult and requests that there be no notification, his or her request shall be respected.

(i)  A taking into protective custody under this section is not an arrest.

(j)  Law enforcement officers or persons responsible for supervision in a lockup or community correctional center or members of a substance abuse crisis team or designated substance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

(k)  This section, except for subsection (j), shall be repealed on July 1, 2010.

Sec. 11.  33 V.S.A. § 708a is added to read:

§ 708a.  INCARCERATION FOR INEBRIATION PROHIBITED

No person who has not been charged with a crime shall be incarcerated on account of the person’s inebriation. 

Sec. 12.  28 V.S.A. § 808(a)(8) is amended to read:

(8)  To prepare for reentry into the community.

(A)  Any offender sentenced to incarceration may shall be furloughed to the community up to 90 days prior to completion of the minimum sentence, at the commissioner's discretion and in accordance with if the requirements and conditions established by rules adopted pursuant to subdivision (C) of this subdivision (8) have been satisfied, provided that an offender sentenced to a minimum term of fewer than 180 days shall not be eligible for furlough under this subdivision until the offender has served at least one-half of his or her minimum term of incarceration.

* * *

(E)  An offender incarcerated for driving while under the influence of alcohol under 13 V.S.A. § 1210(d) or (e) may be furloughed to the community up to 180 days prior to completion of the minimum sentence at the commissioner’s discretion and in accordance with rules adopted pursuant to subdivision (C) of this subdivision (8), provided that an offender sentenced to a minimum term of fewer than 270 days shall not be eligible for furlough under this subdivision until the offender has served at least 90 days of his or her minimum term of incarceration and provided that the commissioner uses electronic equipment to monitor continually the offender’s location and blood alcohol level.

Sec. 13.  28 V.S.A. § 808(b) is amended to read:

(b)  An inmate granted a furlough pursuant to this section may be accompanied by an employee of the department, in the discretion of the commissioner, during the period of the inmate's furlough.  The department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, or transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.


Sec. 14.  APPROPRIATIONS

(a)  The amount of $3,021,000.00 is appropriated to the commissioner of corrections to increase substance abuse treatment, vocational training, and transitional housing for misdemeanants and persons who have committed nonviolent felonies as defined in section 205 of Title 28.  Of this amount:

(1)  $150,000.00 is for funds to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those participating on an intensive out-patient basis;

(2)  $150,000.00 is for funds to expand the ISAP program to include a residential substance abuse treatment component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7);

(3)  $150,000.00 is for funds for entering into contract with several community based substance abuse treatment providers in different geographic regions of the state, to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A.;

(4)  $200,000.00 is for life skills services programming;

(5)  $650,000.00 shall be to provide vocational training and residential substance abuse programs in a work camp;

(6)  $1,200,000.00 shall be to provide grants to community providers of transitional housing to increase the number of beds available by 60 beds for three to six months of housing for at least 120 offenders reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry pursuant to subchapter 1A of chapter 11 of 28 V.S.A.  The new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs; and

(7)  $211,000.00 shall be to purchase electronic monitoring equipment such as automated voice recognition telephone equipment, global position monitoring system bracelets, and transdermal alcohol monitoring equipment.  The commissioner shall use the equipment to augment supervision of offenders on probation, parole, or furlough and to enhance the capacity of field staff to monitor and control offenders who would otherwise be incarcerated.

(8)  $110,000.00 is for recovery centers.

(b)  The amount of $200,000.00 is appropriated to the secretary of human services for funds to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates.

Sec. 15.  ACCOUNTABILITY; REPORTS

[RESERVED]

Sec. 16.  PUBLIC INEBRIATES REPORT

The office of alcohol and drug abuse in the department of health, in consultation with substance abuse treatment providers, law enforcement officers, hospital emergency room personnel, and the department of corrections shall report to the senate and house committees on judiciary and institutions no later than January 1, 2009 with a plan to ensure the regional availability of supportive voluntary and secured accommodations for public inebriates by January 1, 2010.

Sec. 17.  EFFECTIVE DATE

This act shall take effect on July 1, 2008, except for Sec. 11, which shall take effect on July 1, 2010.

And that when so amended the bill ought to pass.

Senator Sears, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended as recommended by the Committee on Judiciary with the following amendments thereto:

First:  By striking out Secs. 14, 15 and 16 in their entirety and inserting in lieu thereof four new sections to be numbered Secs. 14, 15, 16 and 17 to read as follows:

Sec. 14.  BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2009

(a)  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.

(b)  It is the intent of the general assembly to achieve savings in the department of corrections budget which will be reinvested in substance abuse screening, assessment, treatment, and reentry support to result in reduced recidivism.

(c)  In the last quarter of fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest $600,000 as follows:

(1)  The amount of $150,000.00 shall be to provide substance abuse programs and vocational training in a work camp facility.

(2)  The amount of $450,000.00 shall be transferred to the secretary of human services.  $200,000.00 shall be to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates. $250,000.00 shall be to expand the availability of public inebriate beds outside the department of corrections.

(d)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act. 

Sec. 15.  BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2010

(d)  Savings identified in fiscal year 2010 by either the commissioner of corrections or the corrections oversight committee, shall be reinvested in fiscal year 2010 in the following order:

(1)  $150,000.00 is for funds to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those participating on an intensive out-patient basis;

(2)  $150,000.00 is for funds to expand the ISAP program to include a residential substance abuse treatment component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7);

(3)  $150,000.00 is for funds for entering into contract with several community based substance abuse treatment providers in different geographic regions of the state, to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A.;

(4)  $200,000.00 is for life skills services programming;

(5)  $650,000.00 shall be to provide vocational training and residential substance abuse programs in a work camp;

(6)  $1,200,000.00 shall be to provide grants to community providers of transitional housing to increase the number of beds available by 60 beds for three to six months of housing for at least 120 offenders reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry pursuant to subchapter 1A of chapter 11 of 28 V.S.A.  The new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs; and

(7)  $211,000.00 shall be to purchase electronic monitoring equipment such as automated voice recognition telephone equipment, global position monitoring system bracelets, and transdermal alcohol monitoring equipment.  The commissioner shall use the equipment to augment supervision of offenders on probation, parole, or furlough and to enhance the capacity of field staff to monitor and control offenders who would otherwise be incarcerated.

(8)  $110,000.00 is for recovery centers.

(b)  The amount of $200,000.00 is transferred to the secretary of human services for funds to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates.

Sec. 16.  ACCOUNTABILITY; REPORTS

[RESERVED]

Sec. 17.  PUBLIC INEBRIATES TASK FORCE

(a)  A public inebriates task force is established.  The task force shall consist of the following members:

(1)  Two members employed by the office of alcohol and drug abuse appointed by the commissioner of the department of health.

(2)  Two substance abuse treatment providers appointed by the substance abuse treatment providers association.

(3)  One member appointed by the department of public safety.

(4)  One member appointed by the Vermont police association.

(5)  One member appointed by the Vermont league of cities and towns.

(6)  Two members appointed by the Vermont medical society who shall be hospital emergency room personnel.

(7)  Two members appointed by the Vermont recovery network.

(8)  Two employees of the department of corrections appointed by the commissioner of the department of corrections.

(b)  The task force shall report to the senate and house committees on judiciary, institutions, and appropriations no later than January 1, 2009 with a plan to ensure that public inebriates are given appropriate care rather than incarcerated.  The plan shall ensure the regional availability of supportive voluntary and secured accommodations for public inebriates by January 1, 2010, and shall include a timetable for providing reimbursement of expenses to programs that house and maintain public inebriates.

Second:  By renumbering original Sec. 17 to be Sec. 18.

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43.

Thereupon, pending the question, Shall the proposal of amendment of the Committee on Judiciary be amended as recommended by the Committee on Appropriations?, Senator Illuzzi, on behalf of the Committee on Appropriations, and Senator Sears, on behalf of the Committee on Judiciary, moved to amend the recommendation of amendment of the Committee on Appropriations by striking out Secs. 14 and 15 in their entirety and inserting in lieu thereof new Secs. 14a, 14b and 14c to read as follows:

Sec. 14a.  BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEARS 2009 and 2010

(a)  Findings.  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.  This rate of increase has been and remains unsustainable.

(b)  Action.  In order to reduce the unsustainable increases in the expenditures of the department of corrections, the following action shall be taken by the executive branch:

          (1)  In Fiscal Year 2009, the Dale Correctional Faculty in Waterbury shall be closed.

          (2)  In Fiscal Year 2009, the mission of the Southeast Vermont Correctional Facility in Windsor shall change to a therapeutic community in a work camp model, consistent with any further directive set forth in the 2007 Capital Construction Act, S. 365.

          (3)  In Fiscal Year 2009, sections of the Northwest Regional Correctional Facility in St. Albans town shall be closed and the facility otherwise configured to house and program women consistent with any further directive set forth in the 2007 Capital Construction Act, S. 365.

(c)  Goal; Fiscal Year 2009.  It is the goal of the general assembly to achieve in the fourth quarter of Fiscal Year 2009 approximately $600,000.00 in savings in the department of corrections budget, which will be reinvested in substance abuse screening, assessment, treatment, and reentry support, the goal of which is to reduce recidivism for the target group indentified in Sec. 2(a) of this act.

(d) Goal; Fiscal Year 2010.  It is the goal of the General Assembly to achieve in Fiscal Year 2010 approximately $3,044,949 in savings in the department of corrections budget, some of which will be reinvested in a variety of effective programs to further reduce recidivism for the target group indentified in Sec. 2(a) of this act. 

Sec. 14b.  ANTICIPATED BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2009 

(a) In the last quarter of fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest $600,000 as follows:

(1)  the amount of $150,000.00 shall be used to fund substance abuse programs and vocational training in a state work camp facility;

(2)  the amount of $450,000.00 shall be transferred to the secretary of human services and used to fund the following activities:

     (A)  $200,000.00 shall be used to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates; and

     (B)  $250,000.00 shall be used to expand the availability of public inebriate beds outside the department of corrections.

(b)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act. 

Sec. 14c.  ANTICIPATED BUDGETARY SAVINGS ALLOCATIONS IN FISCAL YEAR 2010

(a)  In fiscal  year 2010, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest a portion of the savings identified by either the commissioner of corrections or the corrections oversight committee as follows:

(1)  $150,000.00 to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP), which provides services on an intensive out-patient basis;

(2)  $150,000.00 to expand the ISAP program to include a community based residential substance abuse treatment component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7);

(3)  $150,000.00 to enter into contracts with several community based substance abuse treatment providers in different geographic regions of the state, and to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A.;

(4)  $200,000.00 to provide life skills services programming;

(5)  $650,000.00 to provide vocational training and residential substance abuse programs in one or more state owned and operated work camps;

(6)  $1,200,000.00 shall be to used provide grants to community providers to:

     (A)  increase by 60 the number of beds available for at least 120 offenders who will be staying in the transitional housing for three to six months before reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title 28; and 

     (B)  the new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs;

(7)  $211,000.00 to purchase electronic monitoring equipment, including automated voice recognition telephone equipment, global position monitoring system bracelets, and transdermal alcohol monitoring equipment; the commissioner shall use the equipment to augment supervision of offenders on probation, parole, or furlough and to enhance the capacity of field staff to monitor and control offenders who would otherwise be incarcerated;   

(8)  $110,000.00 for recovery centers; and

(9)  $200,000.00 shall be transferred to the secretary of human services to expand the capacity of community alcohol and substance abuse prevention and treatment providers to provide services, including services to public inebriates.

Which was agreed to.

Thereupon, the question, Shall the proposal of amendment of the Committee on Judiciary be amended as recommended by the Committee on Appropriations, as amended?, was agreed to.

Thereupon, pending the question, Shall the bill be amended as recommended by the Committee on Judiciary, as amended?, Senator Sears, on behalf of the Committee on Judiciary, moved to amend the proposal of amendment of the Committee on Judiciary, as amended, by striking out Sec. 8 in its entirety and inserting in lieu thereof a new Sec. 8 to read as follows:

Sec. 8.  28 V.S.A. § 256 is added to read:

§ 256.  CASELOAD CAPACITY; HIGH RISK OFFENDERS

(a)  Probation officers designated to work exclusively with offenders 21 years of age and younger shall have caseloads of no more than 25 youths.

(b)  The department will review severity of offenses and assess the risk to re-offend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender: 

(1)  Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce risk of re-offense.

(2)  Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.

(3)  Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law. 

(c)  An offender may be reassigned to a lower supervision level after a reassessment of the offender’s risk.

(d) The department shall establish the following probation officer caseload ranges for offender profiles:

(1)  All listed offenders requiring risk management shall be supervised at no more than 45 offenders per probation officer.

(2)  All non-listed offenders requiring risk management shall be supervised at no more than 60 offenders per probation officer.

(3)  All offenders requiring response supervision shall be supervised at no more than 150 offenders per probation officer.

(4)  All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the department.

(5)  When there is a mixed profile caseload in which a single probation officer supervises offenders with different supervision levels, and at least one-third of the offenders require a more intensive supervision demand than the other offenders, the caseload shall be supervised at the lowest level of offender-to-staff ratio. 

(e)  If the caseloads established in subsection (d) of this section are exceeded for longer than 120 days, the commissioner shall be authorized to designate community correctional officers to partially augment staffing caseloads.  If such designation does not remedy the excess caseloads:

(1)  The commissioner shall report to the joint corrections oversight committee the causes for the excess and proposals for addressing.

(2)  The department shall have the authority, if the commissioner believes that the excess will not be eliminated within 60 days, to hire persons from the state's position vacancy pool as limited service employees for an initial period of up to one year.  The initial period may be extended for up to two more years if the department deems it necessary.

(f)  Each time a position is established under subdivision (e)(2) of this section, the commissioner shall report it at the next meeting of the joint corrections oversight committee.  The costs for each position shall be presented in the department’s budget adjustment proposal, and, if the positions are necessary for an ongoing period, in the department’s annual budget request.

Which was agreed to.

Thereupon, the recurring question, Shall the bill be amended as recommended by the Committee on Judiciary, as amended?, was decided in the affirmative.

Thereupon, third reading of the bill was ordered on a roll call, Yeas 27, Nays 0.

Senator Mullin having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ayer, Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Maynard, Mazza, McCormack, Miller, Mullin, Nitka, Racine, Sears, Shumlin, Snelling, Starr, White.

Those Senators who voted in the negative were: None.

Those Senators absent and not voting were: Bartlett, Giard, Scott.

Adjournment

On motion of Senator Shumlin, the Senate adjourned until one o’clock in the afternoon on Wednesday, March 19, 2008.



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Montpelier, Vermont


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