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.
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.
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