Editor’s note: This piece from the SCOV Law Blog is by Jacob Oblak.
State v. Gauthier, 2020 VT 66
An appeal means a party or the parties disagree on a ruling or rulings by a lower court and want a second look from a higher authority to review it and make a final decision. A lot of appealed cases involve lawyers arguing about what really happened, picking apart the facts, and trying to get the Supreme Court justices to see it their way. This isn’t one of those cases. This is a purely legal disagreement about the definition of a single word.
The facts are fairly simple: Gauthier was convicted in 2010 of a sex offense. That conviction comes with sex offender registry (SOR) requirements, one of which is that he notify the SOR of his home address every year. The Department of Corrections told him about the requirements. In April 2014, Gauthier was released on furlough, so he dutifully notified the SOR in 2015 of his new home address as required. He didn’t in 2016. SOR tried twice through the mail to get him to comply, but he didn’t. That’s a crime, so he was charged and convicted for failure to comply. Like I said, simple, right?
Well, I have to explain what furlough is before we get to the disagreement between the State and Gauthier. Furlough is the ability to live in the community while your sentence is still ongoing (before your minimum release date). So furlough time counts as time spent towards your sentence. It is available to some incarcerated individuals based on certain statutory criteria, like helping get living arrangements situated for when they’re eventually released, or to get substance abuse treatment, etc.
And there are lots of restrictions while you’re on furlough, because technically your sentence is being served while you live in the community. You can’t just move. You can’t just take a vacation out of state. You have to get DOC approval for almost anything like that.
Everybody here agrees Gauthier was on furlough and still serving his sentence in 2015. The SOR notification requirements do not apply to people who are “incarcerated,” only to people who are not incarcerated, because the statute specifically says they apply “except during periods of incarceration.” So Gauthier argued he’s incarcerated for all intents and purposes, with only one difference, he can live in the community rather than in jail. The State disagreed, arguing furlough isn’t incarceration for SOR purposes.
So, if furlough counts as incarceration, then the SOR requirements don’t apply. If furlough doesn’t count as incarceration, then Gauthier is guilty of failing to follow the SOR requirements.
SCOV starts with their patented plain-statutory-language approach (yeah, yeah, I know lawyers can’t just toss around legal words like “patented” because it’s clearly not patented, but yes I can, I’m using it colloquially, so there). But it doesn’t help in this case, because the SOR notification statute doesn’t define “incarcerated.” So SCOV relies on the common person’s understanding of what “incarcerated” really means.
In other words, what image pops into your mind when you hear that someone is “incarcerated?”
You don’t think of sipping margaritas while socially-distanced in a friend’s backyard. You don’t think of working a 9-5 job and sleeping in mom’s basement. You don’t think of getting takeout, going shopping, or singing karaoke.
You think behind bars. Like, in jail.
SCOV points to a few dictionaries that support that view, too. Also, other laws usually mean “in jail” when they talk about incarceration. Also, DOC notified Gauthier that he had to follow the SOR requirements while he was released into the community on furlough, because the statute made them. Why would they have to notify him if it didn’t apply to him?
In the end, SCOV acknowledges that there might be different contexts where they’ll have to treat furlough as a form of incarceration, but this isn’t one of them. For purposes of keeping the government updated on where you live, a sex offender has to do it whenever they’re not in jail, even when they’re on furlough. Gauthier should have notified SOR of his home address; he didn’t; so he’s guilty.
One little word: incarcerated. Its definition was the difference between guilty and not guilty. The law is intricate like that.
