Week 15 : April 23th to April 26th

MarkUp

If you check out my time sheet you will see that we are spending less time on the floor debating bills. So just what are we doing? The answer, in most cases is MarkUp.



MarkUp and the work of writing legislation.

Snarky remarks about sausages aside, just how is a bill written? I'm pretty sure I've already described how a bill moves from one legislator's brilliant idea to a document that is introduced to the assembled House and routed off to some committee for possible consideration. That's first reading. At that point the bill has a number and can be found on the Vermont General Assembly website for all to see. Second and third reading come after the various relevant committees get to work it over.

If the committee takes it seriously the person who thought up the bill testifies to the committee. Other experts and interested parties are called in. Lobbyists crowd into the room. They frequently testify for the organizations they represent, but also lurk in the halls and cafeteria in hopes of pulling committee members aside to voice opinions.

Eventually we get to MarkUp. That's when the Legislative Council lawyer who wrote up the bill takes the witness seat and we talk about any changes. There is really only one restriction on what changes can be made; they must be germane. The change must somehow relate to what the bill is about. That's pretty loose. I've seen a bill having to do with highway safety turned into a bill decriminalizing marijuana. The original bill had some mentioned of marijuana. That was enough open the floodgates of change.

In fact committees fairly frequently write strike-all amendments to a bill that replace all the text in the bill with new text. Usually, that's done for simplicity's sake and much of the new text is the same as the old, but sometimes it changes the bill significantly. The point is that everything is up for grabs during MarkUp.

Marking up the Good Time bill

S.112 originated in the Senate. The "purpose of bill as introduced: This bill proposes to require the Department of Corrections to implement a system of earned good time on or before January 1, 2020. " The idea of Earned Good Time is not new. Vermont had such a system at one time. The basic idea is that an inmate can have his or her sentence reduced through good behavior. The Truth in Sentencing movement didn't like it. A criminal would be sentenced to some specific length of time. The victim would be satisfied only to find out later that the sentence was reduced by good behavior. It's rumored that judges started adjusting the sentences knowing that the inmate would receive good time reductions. It was also an administrative nightmare keeping track of the ever changing length of sentence.

But Earned Good Time has been shown to be an effective tool for managing inmate behavior. It also reduces the number of incarcerated offenders (read: saves money). So my committee gets to work on it.

The Senate, in their wisdom, sent us a pretty vague bill that basically said, "The Department of Corrections (DOC) should implement rules that set up a good time program by January 1st of 2020." We had the Commissioner of Corrections in to talk about it and he said, "Uh, can we have some guidelines here?." There are all kinds of questions that come up when one starts considering the details of Good Time.

  • Should it be Earned by completing programs or should it be granted for simply following the rules?
  • Should it be retroactive; granting good time to those already in the system because they have behaved well in the past?
  • Should it be available to those sentenced offenders outside the corrections facilities on probation or parole or furlough?
  • Should inmates in the Work Camps already receiving a reduction in time served be able to get good time reductions?
  • Should good time reduce an inmate's minimum sentence, or maximum, or both?
  • How much of a reduction can be earned?
  • Can good time reductions be revoked?
  • Etc.

In the course of several weeks we battled these issues, took testimony, asked the legislative council for rewrites and revisions. All that's part of MarkUp.

An Interesting Specific

I do remember writing post during last session about the importance of "may" vs "shall." But this week another interesting exchange took place. In the picture on this page you can see a page of the Good Time bill with an inked insertion of "pre". That sentence in the bill that passed the Senate originally said:

"(4) An offender who receives pre-adjudication or post-adjudication treatment in an inpatient setting for a substance use disorder shall earn a reduction of one day in the minimum and maximum terms of confinement for each day that the offender receives the inpatient treatment."

If you are in an inpatient treatment program for substance abuse, you get one day off your sentence for each day you are there. The time you are there is already counted as time served on your sentence. This would also reduce your sentence the same amount. In a sense, the inmate gets two days credit for each day in treatment. That a good thing. It encourages inmates to get treatment.

Pre and post refers to the time before and after sentencing, or adjudication.

Draft 1.1 April 15th

In mid April we started making changes. The result was Draft 1.1. We had changed that sentence to the following:

"(4) An inmate who receives treatment in an inpatient setting for a substance use disorder shall earn a reduction of one day in the minimum and maximum terms of confinement for each day that the inmate receives the inpatient treatment. "

We changed "offender" to "inmate" and took out the pre and post adjudication part. There is a big difference between offenders and inmates. Just about everyone in the criminal justice system is an offender, even those not yet sentenced. An inmate is an offender that is being held within a correctional facility. We were thinking that good time should only apply to inmates.

Draft 2.1 April 18th

A week later we were considering Draft 2.1. The sentence now read:

"(3) An offender who receives ?? pre-adjudication or post adjudication ?? treatment in an inpatient setting for a substance use disorder shall earn a reduction of one day in the minimum and maximum terms of confinement for each day that the offender receives the inpatient treatment. While a person is in residential substance abuse treatment, he or she shall not be eligible for good time except as provided in this subsection. "

Now we're back to offenders instead of inmates because we want to allow those on furlough to be included. I won't get into the details of what furlough means. It's basically serving time outside the prison. The question marks around pre and post adjudication means we're re-thinking that one too. The additional sentence is because Good Time also offers five days a moth for those who follow the rules and don't screw up. We didn't want those in treatment to get that as well.

Draft 3.1 April 23rd

Another week, another draft. Now we're at Draft 3.1 and that same paragraph reads:

"(3) An offender who receives post-adjudication treatment in an inpatient setting for a substance use disorder shall earn a reduction of one day in the minimum and maximum sentence for each day that the offender receives the inpatient treatment. While a person is in residential substance abuse treatment, he or she shall not be eligible for good time except as provided in this 8 subsection. "

We stuck with offenders and decided on post-adjudication only. Our concern was that the Judge, when sentencing, would take any time in treatment into account when determining the sentence. If the person charged had completed 30 days of treatment prior to being sentenced, the the judge would reduce a six-month sentence to five. We didn't want inmates to get an additional 30 days when we calculated good time.

Draft 4.1 April 25th

Two days later in Draft 4.1 we've made a drastic change. We struck out the whole paragraph, moving it to another portion of Vermont law that deals with sentencing. That paragraph now reads:

"(3) An offender who receives pre-adjudication or post-adjudication treatment in an inpatient setting for a substance use disorder shall earn a reduction of one day in the offender’s minimum and maximum sentence for each day that the offender receives the inpatient treatment. "

We're back to pre and post both being in there. The pre makes sense because we want to be sure the judge reduces the sentence for the time spent in treatment. And the post makes sense because the judge may, as part of the sentence, say that the offender must attend a treatment program.

That's where we were last week. I can't say all this really sank in as it was happening. It's really only now that I understand all that we did with this paragraph. There were other paragraphs in this bill and other bills being considered. It got messy.

But . . . when we were about done and ready to request one final draft from the lawyer my computer science background kicked in. I looked at that sentence and thought "An offender who receives pre-adjudication or post-adjudication treatment" is really just the same as "An offender who receives treatment ". It's a simple logic statement in programming " X < 0 and X > 0" is just about the same as "no matter what X is." Pre and Post means all the time. The topic was opened up again late in day when everyone wanted to leave.

Inserting the original paragraph back into the Good Time portion of the bill was suggested and another draft requested.

Draft 5.1 - Next week

The result will be 5.1. The chair swears there will not be a Draft 6.1. We have messed with the sentencing statutes so the House Committee on the Judiciary will have to take a look at it. Then it will be presented on the House floor (probably next week) for second and then third reading. Then it goes back to the Senate.

Lesson Learned

The lesson learned from all this is that details matter. At one of the forums during the last campaign a rather specific question was asked of the candidates. One candidate responded that she felt the details were not that important. It was the concept and overall principle that concerned her. But writing good legislation someone has to get down into the details, not just of the sentence structure, but all the things in the background: how an inmate is sentences, who is in or out of prison, what kinds of treatment there is, etc. etc.

Next Week

Aside from another draft of the Good Time bill, the Capital Bill may come back from the Senate. And there are still all those important ones being marked up in House committees. We're hoping to be done by May 17th. That's only three weeks!