Watching the General Assembly’s last-minute scramble in June to figure out how not to kick 2,000 homeless Vermonters out of the motels sheltering them, I thought about all the time that legislators had spent during the winter and spring deliberating over bills that were, from a practical standpoint, essentially pointless.
Until a media frenzy and an outpouring of citizen concern converged on Montpelier in the closing weeks of the legislative session, a significant swath of our elected representatives seemed largely unaware that they’d set a course for crisis. As recently as March, they’d determined to kick the can down the road, changing the termination date for the pandemic-era General Assistance Emergency Housing Program from early spring to early summer, but that vote hadn’t come with a plan for what the state should do when the end finally arrived.
By the time the legislature reconvened for June’s veto review session, the Democrats’ budget had become a public relations disaster, and following an unsuccessful attempt to blame Governor Scott, the party had to find a way to save face. Ultimately, Scott helped.
A hastily crafted amendment to H. 171, which allocated cash reserves to cover continued motel placements for families that met special criteria until April 2024, may have pacified some distressed voters. It did nothing, however, for the 800 Vermonters whom the state had already evicted by that point.
How did this happen? If legislators can’t devise a reasonable process for winding down a program sustained by temporary federal dollars instead of simply pulling the rug out from under its beneficiaries, what do they do all day?
As a Counterpoint reporter, I follow bills related to mental health. Obviously, these comprise a small subset of the proposed legislation that comes before the General Assembly. But they offer a glimpse at a bigger picture, where Vermont’s part-time lawmakers seem to have few ideas of their own, and in that void, the pet projects of small, well-organized interests manage to command an unwholesome share of the precious hours in which our legislators might otherwise attempt to address the major problems of our state.
These bills are not necessarily sinister. Inevitably, while transacting the business of the people, legislators sometimes have to wade into esoteric topics that don’t cross the average Vermonter’s mind or, in the normal course of events, their own.
Understandably, they may look to someone else for expertise. But surprisingly often, advocacy groups – especially when they represent institutions or individuals rather than genuine political movements – suggest tweaks to the more obscure sections of state statute that fail, in fairly self-evident ways, to present effective solutions to the narrow problems they purport to address.
Trade associations, for example, have their own internal politics, driven by the concerns of members whose problems may not, in the end, be resolvable via rewrites of the laws that pertain specifically to their sector. Their policy analysts have no choice but to seek solutions within that prism, but legislators, at least theoretically, can recognize in lobbyists’ complaints manifestations of larger social failures and strive to resolve them upstream.
One upstream problem, which affects nearly all the rest, is, of course, housing. Others have more specialized dimensions, but there’s not always a specialized solution at hand.
Consider, for example, S.36, which the legislature passed in May.
With this superficially rational bill, the Vermont Association of Hospitals and Health Systems proposed to amend the third section of the Vermont Rules of Criminal Procedure to include assaults against healthcare workers among the misdemeanor offenses for which a police officer can make an arrest without obtaining a warrant or witnessing the incident directly.
For good reason, Vermont’s hospitals want to defend their staff, particularly during a workforce shortage. Nurses offered startling, painful accounts of attacks by patients. But before the bill’s arrival, Rule 3 already specified that police could arrest a suspect for a nonwitnessed “simple assault” against any person in any setting.
The added redundancy aimed, at best, to mark a point of emphasis – to send a signal that emergency department nurses, in particular, require protection amid a reported uptick in violence, and that law enforcement has the power to offer that protection.
But in testimony before the legislature, police made clear that, if they hesitated to arrest emergency department patients, it was not because they were uncertain about their legal right to do so. On the contrary, their procedures owed to a reasonable and – as long as lawsuits still exist – seemingly immovable reluctance to take patients with potentially pressing medical needs into custody and thereby deny them possibly life-saving care.
This reluctance would likely extend just as much or more to a pair of lower-level offenses that S.36 also added to Rule 3: threats against a hospital employee and disorderly conduct inside a hospital. Vermont Defender General Matthew Valerio argued that, by other names, these crimes, too, already fell within the list of arrestable misdemeanors.
“When it comes down to granting more authority to law enforcement than they already have right now, this bill doesn’t do anything,” he told legislators. “If you’re in healthcare and this bill gets passed, they should not anticipate that they have any more protection than they already have right now.”
Lawmakers listened politely to this testimony and continued to move forward, having already apparently determined that they would do what they could to appease VAHHS, which, for its own part, had evidently determined that it had to do something to appease its own distressed members. The final legislation included a provision preventing police from taking patients into custody if they still need medical evaluation or stabilization – in other words, it codified existing the practice as law, fully defeating the original purpose of the bill, which was to boost arrests.
2023’s pair of forensic mental health bills demonstrated a similar dynamic. Over the years, a handful of violent crimes attributed by police to perpetrators with psychiatric diagnoses – and especially a horrifying 2021 murder in Bennington – had generated a small but militant demand for the state to find new ways to restrain and punish alleged criminals within the mental health system.
When a defendant enters the custody of the Commissioner of Mental Health because a criminal court has found them incompetent to stand trial or not guilty by reason of insanity, there’s only so much the state can do without violating the Constitution. After all, the person in question doesn’t actually have a criminal conviction on their record.
Still, the topic has managed to keep the legislature busy.
S.89 created Vermont’s first segregated facility for psychiatric patients committed by a criminal court. Its sponsors never firmly articulated a rationale for why forensic patients should no longer mingle with patients committed by a civil court, who receive similar or identical care, but the change aimed to have the effect of marking them, for the possible satisfaction of victims’ family members, as a singularly tainted subgroup.
Without a new building on the horizon, the creation of the “new” forensic facility would itself, under this legislation, amount to little more than a metaphor. An existing nine-bed wing of the locked Vermont Psychiatric Care Hospital, which already houses the patient population under discussion, would receive redesignation as a secure residential facility for forensic patients.
The state would save some money by reducing its quantity of level-one psychiatric beds, but in doing so, it would degrade its own definition of “step-down care,” which in this case would include restraint and seclusion. The patients themselves might hardly notice their own “transfers.”
A related bill, S.91, decoupled competency determinations from sanity evaluations. Until recently, upon a judge’s say-so, the Department of Mental Health examined both questions – that of the defendant’s state of mind at the time of the alleged offense (sanity) and that of their ongoing ability or inability to stand trial (competency) – simultaneously.
Following S.91’s passage, DMH’s screening will consider only competency, leaving to the defendant the responsibility to raise the question of sanity if their legal counsel deems it relevant. This move intends to demonstrate to public safety advocates that the state has shed its eagerness to let dangerous criminals permanently off the hook by freely offering diagnoses of insanity.
In reality, S.91 only shifts the expense of the sanity evaluation from one part of the state to another – specifically, to the Office of the Defender General, which of course knows that, in order to represent its clients’ best interests, it must always secure a prompt sanity evaluation, before the loss of any evidence. The court may no longer order DMH to do it, but it’ll happen all the same, and still at the public’s expense.
Together, S.36, S.89, and S.91 required a total of 62 committee hearings before their passage. During this time, the less diligent legislators nodded along, and the more diligent ones worked hard (with some success) to make the bills slightly less bad without visibly questioning the seemingly predetermined imperative to advance them irrespective of their merits.
All three bills constituted reactions to the specter of violence in our society – the fear of which all too often turns psychiatrically labeled people into scapegoats and boogeymen in the popular imagination, prompting periodic demands for crackdowns. A legislator with a substantive, independent political vision might possess their own, more legible theory of how to work toward a less violent society. But in Vermont, many appear happy enough simply to look important while somebody else, it seems, instructs them how to vote on bills that don’t obviously concern them very much.
But what happens when, at the crucial juncture, no one is available to tell our lawmakers what to do? This year, they had to make hard decisions about how to wrap up the emergency housing program. They couldn’t ask a workgroup to figure it out for them next year, and the homeless don’t have lobbyists to draft policy on their behalf.
A logical plan would have ended admissions to the pandemic-era program – which, without the legislature seeming to notice it, persisted even after the state’s first round of evictions – with enough cash still on hand to sustain remaining beneficiaries for a period long enough to accommodate their transitions to permanent housing, even in inevitable protracted cases.
With a little forethought, legislators might have realized the implications of what they’d created in 2020: a change whereupon a full return to the state’s pre-pandemic shelter policy could never happen without some significant pain. Opening the state’s motels to all comers at the start of the pandemic revealed a vast population of previously uncounted homeless Vermonters, or it created an all-new one, depending on whom you ask. But in either case, the state assumed a significant responsibility, and a mass eviction should’ve always remained out of the question.
A proactive government, at that point, might have bought some of the motels for the purpose of creating fiscally sustainable permanent shelters. At market price, they would’ve cost less than a few years’ worth of vouchers.
With even more forethought, legislators might have undertaken the work begun by S.100, the HOME Act, a few decades ago, before the housing crunch got so dire as to turn homelessness into the massive problem it’s become today. We shouldn’t have needed to create a desperate shortage of homes for lawmakers to realize the necessity of permitting new construction and denser living arrangements – to say nothing of more radical approaches to housing production.
Instead, the legislature displayed so little forethought that, even now, we don’t really know what will happen to the 2,000 Vermonters whom the veto session supposedly rescued. The sloppy amendment to H.171 ostensibly ensures that they’ll keep their motel placements until April – unless they fail to “participate in the coordinated entry and case management processes” or to “engage in their own search for alternative housing options” or to avoid “misconduct,” according to undetermined criteria, to be enforced by an undefined entity.