Vermont panel weighs S.193 to create forensic facility for competency restoration; judges flag legal and custody gaps

The Vermont House Judiciary Committee on April 8 held a hearing on S.193, a bill that would establish a forensic facility to provide competency restoration services and address certain not-guilty-by-reason-of-insanity (NGRI) cases.

Dominque Fadala, Chief of the Criminal Division for the Vermont Attorney General’s office, said the state urgently needs a program to restore competency for defendants who cannot meaningfully participate in their defense. "We give them zero tools to help remedy that situation and that is unacceptable," Fadala told the committee, arguing targeted restoration services would shorten case backlogs and make it possible for defendants to engage with the court process.

Fadala stressed the legal distinction between competency restoration — a compelled, court-ordered process that allows a defendant to participate in trial — and an NGRI plea, which is an affirmative defense about a defendant’s responsibility. She said medical diagnoses can inform but do not determine legal findings, and that multiple experts may offer differing diagnoses even while agreeing someone cannot participate in proceedings.

Why it matters: Supporters say a dedicated facility would provide focused clinical assessment, treatment, and monitoring so defendants can be restored to competency and cases can move forward. Opponents and several judicial witnesses cautioned that the bill, as drafted, leaves important legal and operational questions unresolved, including custody language, the standard and timeline for declaring someone “not restorable,” and how the measure would interact with existing statutes governing conditions of release.

Judge comments and drafting concerns

A judge joining by video — identified in the hearing as Jared Zonay and also introduced as Tom Zonia, Chief Superior Judge — said the bill contains several drafting problems that could generate due-process issues or litigation if left unaddressed. On the bill’s use of the word "transfer," he said the wording may be inaccurate for defendants already on conditional release and suggested statutory phrasing such as placing a person "in the care and custody of the Commissioner of the Department of Corrections and remanded to the forensic facility" to clarify custody and remand mechanics.

The judge also flagged multiple provisions for clarification: a subsection on second or subsequent evaluations that appears to let a court make out-of-process findings; broad language that permits conditions "appropriate to protect the public" without showing whether that displaces or supplements 13 VSA §7554 (the existing conditions-of-release statute); and a dismissal subsection that could be read to limit the court’s other dismissal authorities. He recommended adding language preserving the court’s discretion to dismiss charges under any other authority.

The judge asked for explicit standards for who qualifies as an "examiner" for forensic risk assessments and whether examiners must meet criteria such as those in section 4814 of Title 13 (forensic psychiatrists or doctoral-level forensic psychologists). He also noted the bill proposes a change affecting the Vermont rules of evidence and observed the legislature could reach the same result by statute without editing the evidence rules directly.

Unresolved questions: restorability, custody, and cyclical cases

Witnesses and committee members pressed how the bill would treat defendants deemed "not restorable" and whether such people could be held indefinitely. Fadala acknowledged the concern and said the proposed facility could allow long-term supervision in some cases, which raises intense policy and constitutional questions. Committee members also discussed the risk of cyclical patterns in which defendants are released, violate conditions (possibly because they do not understand them), and are re-hospitalized or face new charges.

Next steps

Committee leadership said staff and bill sponsors will work proposed edits into a new draft, and the committee scheduled additional witnesses — including the Department of Mental Health, Vermont Legal Aid, Disability Rights Vermont, the Defender General’s Office, the Vermont Developmental Disability Council, DOC general counsel, and a Wellpath representative — to return next week for further testimony.

The hearing was adjourned with members expecting revised language and another round of testimony before the committee advances the bill.

(Reporting from committee testimony; no vote was taken on S.193 during this session.)