Shipping only male inmates out-of-state unconstitutional, judge rules

Vermont’s practice of sending only male inmates to prisons outside Vermont is unconstitutional, a superior court judge has ruled.

In a 21-page decision issued this summer, Washington Superior Court Judge Helen Toor ruled that an inmate was denied equal protection under the Constitution because he was sent to prison in another state while his female counterparts were locked up in Vermont.

Judge Helen Toor considers arguments in an equal pay lawsuit filed against the state. Photo by Hilary Niles/VTDigger

Judge Helen Toor considers arguments in an equal pay lawsuit filed against the state. Photo by Hilary Niles/VTDigger

After a trial held in June, Toor ruled that the Department of Corrections failed to prove that it is constitutional to treat male and female inmates differently.

Vermont inmate Michael Carpenter, who was housed in Kentucky, brought the case. In her decision, Toor ordered that Carpenter be returned to Vermont.

Carpenter has been in prison for more than three years. He is serving sentences for violation of an abuse prevention order, driving under the influence, violation of probation and attempted escape, according to court documents.

Carpenter also has twin boys, Aiden and Brendan, who are nearly 5 years old and a fiancée, Dee Morse, who testified at the trial, documents show.

“The court cannot sanction DOC’s policy of sending male inmates far from home, regardless of whether they have close bonds with their young children, while keeping all women nearby,” Toor wrote.

Carpenter was first incarcerated in Vermont and played with his children weekly during visits, court documents show. When he was sent to Kentucky, the family could not afford to make visits.

There are no state subsidies for travel and no option for Skype, Facetime or other types of video conferencing from that facility, documents show. The Skype program that is supposed to exist is having “technical issues,” according to court documents.

Carpenter’s attorney, Dawn Matthews, argued that because his incarceration in Kentucky in essence prohibits him from any contact with his young children, it violates the federal Equal Protection Clause and the Common Benefits Clause of the Vermont constitution.

“The DOC policy of sending only men out of state is, for all practical purposes, equivalent to a regulation barring all contact with the inmates’ minor children,” the judge wrote.

DOC does not have a written policy on sending only men out of state, but does so because there are more men in the system, according to court documents.

It is DOC’s policy to keep inmates as close to their families as possible; however, it does not ask inmates whether they have minor children, according to court documents.

The DOC keeps no statistics on how many inmates are parents, but a recent study found 64 percent of in-state inmates were parents of minor children, according to court documents.

The decision cites national data that show that prisoners who are allowed to visit with their children are more likely to get a full-time job upon release and are less likely to commit new crimes or use drugs.

The DOC argued that out-of-state placements do not discriminate based on gender. The impact on families when men and women are incarcerated, as well as the need to manage the prison population, justifies the different treatment, DOC also argued.

DOC’s attorney, David McLean, argued that there is no constitutionally protected right to visitation. The state argued that by violating the law, inmates lose whatever rights the common benefits clause may provide.

Vermont since 1998 has housed about 500 of its approximately 2,000 prisoners in Kentucky and Arizona because state facilities are overcrowded. Private prison contractor Corrections Corporation of America operates those facilities. Many advocates argue that all of Vermont’s prisoners should be held in-state.

The criteria for sending a prisoner out of state is that he must be serving a sentence, cleared for physical and mental health, not involved in any programming and not eligible for work camp, according to court documents.

The judge acknowledged that DOC sends prisoners out of state because it lacks resources, but said that is not an excuse.

“Courts must at all times insist that unconstitutional conditions be remedied, even at significant financial cost,” she wrote.

“The court does not suggest that the solution is to necessarily send women out of state, only that the current practice of distinguishing between inmates based on gender is legally indefensible,” she wrote.

DOC Commissioner Andy Pallito did not respond to requests for comment for this story.

Suzi Wizowaty, executive director of the group Vermonters for Criminal Justice Reform, said the decision is another reason to end the practice of sending Vermont inmates out of state.

“It just confirms for a different reason that sending men out of state is a bad idea,” Wizowaty said.

The solution, she said, is to reduce the number of people in prison. Her organization is working on legislation to do just that. Wizowaty said prison overcrowding is not a DOC problem, but rather one for the Legislature to solve.

Lawmakers could, for example, make it easier for inmates to find housing so they are not waiting in prison, as is the case for more than 200 prisoners.

The state could also change penalties for nonviolent drug crimes so those crimes are not punishable by incarceration, she said.

Laura Krantz

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  • John Cisar
  • Patrick Cashman

    Ooh. A new campaign. “Imprison Local”.

  • Patrick Cashman

    Or, here’s a fun one. What if you apply the same clauses to the “Traditional” Town Meeting. In the case of the Vermont Constitution: “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons…”

    Such a “set of persons” might be defined as those physically capable of attending town meeting in person. Those whose rights are being violated being those forced by circumstance to vote via absentee ballot.

  • Fred Woogmaster

    Since I strongly believe that shipping Vermonters , those arrested, tried and convicted in Vermont, to corporately run prisons elsewhere represents bad public policy – the implications of this decision make good sense to me.

    We read of numbers of ‘drug’ arrests’ of people from outside of Vermont. While awaiting trial those individuals MUST be housed in Vermont. Any one of a number of Vermonters might then be “bumped” to Kentucky or elsewhere, regardless of family ties (children) or individual circumstance.

    The move towards contracting for out-of-state private prison space was unfortunate in 1998, in my opinion. My opinion today is far stronger.

    ‘Penny wise and pound foolish’, I say.
    The hidden expenses are massive.

    The initiatives designed to reduce the prison population by releasing those who do not require incarceration and by changing our “sentencing” stance seem to be moving quite slowly.

    “Corrections” is still a growth industry.
    Most unfortunate.

  • Bill Olenick

    My thought on the subject is if you want to reform the prisoners then leave them in state as Vermont shows more compassion than most other states but if you want to punish them or if they are deemed unreformable then by all means ship them out of state where they will be exposed to harsher treatment and be in the company of much more hardened criminals and they will be exposed to more ways to commit crimes by association with hardened criminals, but if you are an elected official, under pressure to cut costs by an unruly electorate, then that official is tempted to utilize organized private prisons.
    My thought is that by sending them out of state there is a higher chance of they returning to Vermont much more hardened in crime then if they did their time in Vermont.
    Kinda a Catch 22…
    In state prison farms than grow food for all state institutions in the state and to teach them the value of hard work,mixed with education programs would be a better way to reform them.

    • Fred Woogmaster

      The production of hemp, illegal through ignorance, could fund our entire corrections system. It will happen – somewhere.

      Why not Vermont?

      • Bill Olenick

        As a farmer who knows the value of industrial hemp, and the valuable history of its production in the states, until about 60 years ago, and given all the fallow farmland in VT, if it were legal it would create a large farm based industry that would be a boon to Vermont’s agricultural sector and strongly increase the tax base as a result, and the hemp product industry would no longer need to import their raw material from Canada.
        Local for local and everyone wins so legalize it now and repeal Neanderthal policies of old.

  • It’s time to get rid of the Prison Industrial Complex. The for-profit prison industry is akin to slavery. Ban all for-profit prisons, and any prison service that charges a higher rate in prison than out of prison.

    Free all nonviolent drug offenders immediately and stop arresting people for simply taking or possessing drugs.

    Work on rehabilitating violent prisoners in a humane environment as is done in places like Denmark.

    Use common sense in prosecution. It does not honor the law to prosecute anyone who has broken the law whether there was harm or not.

  • Rich Lachapelle

    As much as I have always considered the idea of private for-profit prisons bothersome for a number of reasons, if the issue is of gender inequality, then by all means, lets ship some of our female offenders out of state to satisfy this politically correct judgement. Ideally, the ones we ship out should be the ones with no ties to Vermont, specifically the urban visitors who have brought their illicit poison here to sell. We dont want those feral humans tainting our culture anyhow whether inside or outside of prison. We owe them nothing.

  • Anne Donahue

    This decision supports my own belief that sentencing is not equal if some persons are sent out-of-state and others are not: precisely because of the added punishment (and harm) caused by the lack of access to family contact. The minimum requirement ought to be a sentence adjustment that reflects the disparity. One month per year “discount” if serving time out-of-state? I don’t know what the appropriate discount would be, but this is certainly not equal treatment under the law.

  • Dave Bellini

    Sending inmates out of state wasn’t supposed to last forever. The legislature has stated repeatedly that housing Vermont inmates in Vermont is their goal. There is no strategic plan to do so however. We hear testimony and credible evidence that family contact is a key factor in reintegration success. Even so Vermont is the worst state for supporting family contact by virtue of its out of state program. It flies in the face of the mission statement, values and principles. How could one not be a cynic regarding Vermont state government. Sending inmates out of state to warehouse CCA prisons is mission failure.
    Vermont state government while proclaiming liberal, progressive values, practices the total opposite. Vermont state government believes in a livable wage yet supports CCA and its low wage employment practices. The current Administration supports the hiring of temporary correctional employees and has no plan to end this.
    They claim to support healthcare for all yet refuse to extend the state employees health plan to all state workers. They claim to support paid sick days yet ensure that a large segment of state workers don’t get any.
    Sending inmates out of state is short sighted and when examined closely does not save money. But we’re all about short sight and the short dollar.

    • Chuck Lacy

      The circle completes with Senator Dick Sears who appears to be Vermont’s lifetime leader in campaign contributions from the Corrections Corporation of America. Sears serves on the Joint Legislative Committee on Corrections with Senator Peg Flory who also takes cash from the prison company.

  • David R. Black

    I heard that Gitmo needs a few good men and women.

  • Jim Candon

    Yup- here we go again. The criminals are the victims.

    • Pat McGarry

      Jim- just because they are convicts doesn’t justify violating basic constitutional rights.

  • Fred Woogmaster

    Those incarcerated are just one part of the equation and we hope that their incarceration is justified. Some of them have hurt people – often, many people.

    Families, children and parents, are most frequently innocent victims of the system designed to bring justice.

    Vermont can do both; punish those who require punishment, and provide healing opportunities for the families, for the children.

    Not when we store “ours” in far away places with strange sounding names.

    Contracting may make cents. Sending them away makes no sense – to me.

  • Pat McGarry

    Did anyone notice that the State of Vermont didn’t appeal Judge Toor’s ruling?

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