§ 7555a. Legislative findings
The General Assembly finds:
(1) During the 1991-2 and the 1993-4 sessions, the General Assembly adopted Proposal 7,
which proposed to amend section 40 of Chapter II of the Vermont Constitution to allow a judge to order a person charged with a felony involving an act of violence
to be held without bail when the evidence of guilt is great and the court finds by
clear and convincing evidence
(A) that the person’s release poses a substantial threat of physical violence to any person;
and
(B) that no condition of release will reasonably prevent the physical violence.
(2) On November 8, 1994, the voters of the State of Vermont approved Proposal 7.
(3) On December 13, 1994, the Governor certified the amendment thereby making it effective
on that date.
(4) As amended, section 40 of Chapter II of the Vermont Constitution provides that if a judge orders a person held without bail, that person is entitled
to a review de novo by a single Justice of the Supreme Court forthwith.
(5) Given the unique nature of the trial court hearing which can result in the accused
being denied bail, in passing Proposal 7, and its enabling legislation, H.589, the
General Assembly intended to provide the accused with a second evidentiary hearing
by a single Justice without regard to the record compiled before the trial court.
However, in the case of State v. Madison, No. 95-046 (1995), the Vermont Supreme Court held that the term “review de novo” as
it is used in section 40 of Chapter II of the Vermont Constitution and in H.589 does not require the single Justice to conduct a second evidentiary
hearing and that the Legislature should have used the term “hearing de novo” if it
intended a second, independent evidentiary hearing.
(6) Proposal 7 substantially increased the court’s authority prior to trial and conviction
to incarcerate persons accused of certain offenses. It was the intent of the General
Assembly to balance this increased judicial authority with increased due process for
the accused person. That increased due process was intended to be in the form of a
new and independent evidentiary hearing.
(7) In certain respects, the Vermont Constitution is not a grant of power to the Legislature,
but is a limitation on its general powers. Section 40(2) of Chapter II establishes
the minimum required due process for an accused, but the General Assembly may require
greater due process.
(8) It was the clear and unequivocal intent of the General Assembly that a person who
is denied bail and is incarcerated prior to trial under the authority of section 40(2)
of Chapter II be entitled to a second full evidentiary hearing by a single Justice.
(9) In order to implement the intent of the General Assembly, subsection 7556(d) of this title is amended to make it clear and unequivocal that a person who is denied bail under
the authority of section 40(2) of Chapter II is entitled to a second full evidentiary
hearing by a single Justice. Such a hearing is intended to be in addition to but not
in conflict with the constitutionally required minimum due process established by
Proposal 7. (Added 1995, No. 170 (Adj. Sess.), § 24a, eff. May 15, 1996.)