Editor’s note: This story by Tommy Gardner first appeared in the Stowe Reporter.
Shaun Bryer, the Morristown man sent to prison in 2011 for molesting two children, says that, in a way, living at his parents’ house was as bad as being in jail.
His argument: Since he was forced to live under 24-hour curfew at his parents’ place for the two years between his arrest and his conviction, he might as well have been under lock and key. That argument could shave two years off his prison sentence.
Under a recent precedent set by the Vermont Supreme Court, criminals who are under “restricted movement” before their convictions should get the same credit for time served as criminals held in jail awaiting trial.
In 2011, Bryer was sentenced to serve 12 years in prison and the rest of his life on probation after pleading guilty to molesting two boys when he was their teacher at Morristown Elementary School. In all, Bryer pleaded guilty to 14 charges: One count of aggravated repeated sexual assault, five counts of sexual assault, six counts of lewd and lascivious conduct with a child, and two counts of furnishing indecent material to a minor.
Bryer asked for the sentence reduction last week in a conference call from prison in Michigan. Lamoille County State’s Attorney Paul Finnerty predicts he’ll get his way.
“It’s unfortunate, but that’s the way it is,” Finnerty said. “The Supreme Court has pretty much said that, if you have a significant restriction on your movement as a condition of release, it’s pretty much the same as being in jail.”
This precedent is not new. It stems from a 1982 case in which Northeast Kingdom resident Ronald McPhee was given credit for time served in a lodge in Newport while awaiting trial. The Supreme Court’s interpretation: He wasn’t free to stay where he wanted.
That precedent was reaffirmed in 2013. Very recently, another local criminal was given credit for curfew, citing that case law.
Just last month, Leola Bell, the Morristown woman charged in 2013 with purposely setting fire to a mobile home to kill the resident, had two years taken off her minimum sentence, after arguing that her 24-hour curfew was the same as being in jail. That effectively reduced her five-year minimum sentence to three years. In other words, she’s been in jail since last summer, but she might as well have been there since 2013.
Similarly, if Judge Dennis Pearson grants Bryer’s request — which Finnerty anticipates will happen — Bryer will have credit for six and a half years, not four and a half.
Defense lawyers’ trade journals often discuss court decisions that set the tone for others that follow; if that’s the case, Finnerty said, many more of these arguments for credit based on “movement restrictions” could find their ways to the courts.
Price of low costs
According to Finnerty, in Chittenden County — where he worked before coming to Lamoille — it costs $160 to lodge someone overnight and bring him or her to court the next day. After a year or two, those costs can add up. Staying at mom and dad’s place? Much cheaper.
“There’s so much pressure to reduce the corrections budget,” Finnerty said. “There’s pressure on judges to not hold people on bail, because it’s so expensive.”
At a quarterly meeting of Vermont state’s attorneys last Friday, Finnerty suggested that prosecutors lobby the Legislature to change the law. But there doesn’t seem to be an appetite for that, he said, not when home detention can save taxpayers money and not when the state is trying to stop filling up prisons.
If judges have been basing their sentences solely on jail time as a way to get credit for time served, they may start to adjust their thinking and consider home detention and 24-hour curfews in their math. They could start simply making minimum sentences longer.
“It is unfortunate in how it undermines the perception of ‘truth in sentencing,’” Finnerty said.
