Should Matthew Morgan, who while out on furlough was given four years in prison following a shoplifting charge that was later dropped, have gone back to jail in the first place?
Attorneys debated that question in court on Tuesday in response to a lawsuit Morgan has filed against the Vermont Department of Corrections. Though Morgan became eligible for release three weeks ago, he remains incarcerated, waiting for the department to approve a residence for him.
Meanwhile, five state representatives have urged the corrections department to release Morgan without housing approval, calling the situation “unfair, inhumane, and unjust.” They made the request in a letter to the department’s commissioner last week.
Days into his furloughed release last fall, Morgan was charged with shoplifting a $129 speaker from Walmart. Morgan was at the doctor’s office at the time of the alleged theft — his doctor confirmed his alibi, Morgan said in sworn testimony — and the charge was dropped in June. But the charge itself, coupled with Morgan’s criminal history, led the Department of Corrections to send Morgan to jail for four years on a furlough interrupt.
Even after the corrections department became aware that the charge against Morgan had been dismissed, Morgan remained incarcerated, court documents show. Two days after VTDigger reported that Morgan had sued the department to seek his release, and almost two months after the shoplifting charges were dropped, the department decided he was eligible to leave prison on furlough.
Though he has been approved for release, Morgan is continuing to pursue his case against the department while being held at Southern State Correctional Facility in Springfield. At Tuesday’s hearing on his case’s merits, held remotely from the Vermont Superior Court in Woodstock, Morgan’s lawyer, Annie Manhardt, supervising attorney in the Vermont Prisoners’ Rights Office, argued that the shoplifting charge against Morgan — disproven or otherwise — should never have triggered a prison sentence.
Corrections “departed from its own mandatory policy,” Manhardt said, when it imprisoned Morgan for a nonviolent misdemeanor.
While the department’s directives allow officials to send a furloughee to jail for a “history” or “pattern” of behavior, or when lower-level sanctions have not stopped the person from violating furlough, Manhardt said the department had not exhausted those lower-level sanctions. Plus, she argued, “this was one single allegation. It was not a history or pattern of behavior.”
Representing the Department of Corrections, attorney Lauri Fisher argued that Morgan’s three previous furlough violations allowed the department to send Morgan to prison following his most recent violation. She also drew on testimony from a corrections staff member, who said Morgan, 54, has accrued 42 criminal convictions in his lifetime.
Fisher acknowledged that there “absolutely” had been a “delay” in getting Morgan’s furlough eligibility approved once the shoplifting charge against him was dropped. But, she said, Morgan had “plentiful” options for appealing his incarceration, which he did not seek, thus making his lawsuit against the department unjustified.
According to Fisher, Morgan should have appealed his furlough violation through “Rule 74,” a rule governing appeals of furlough violations. State statute indicates that a person can appeal a furlough interrupt of longer than 90 days through Rule 74 if the alleged violation is a “technical violation.” The statute goes on to describe a technical violation as one that “does not constitute a new crime.”
But Fisher said courts have understood Rule 74 liberally, and the prisoners’ rights office has previously argued that Rule 74 should apply to new criminal charges, she said.
Fisher took further issue with the fact that Morgan did not appeal through Rule 75, a rule that allows judicial review of governmental action.
In his testimony on Tuesday, Morgan had said he waived his right to a hearing on the shoplifting furlough violation because the corrections employee overseeing the hearing told him that “No matter what we do, hearing or not, we’re going to find you guilty.” Plus, Morgan said, that employee said the punishment would be harsher if Morgan wanted to contest the furlough violation and the employee was made to do more paperwork.
Assuming Morgan’s testimony was accurate, Fisher responded, the incident he described was a violation of due process and therefore worthy of appeal.
“I would think that someone as astute as Mr. Morgan would have filed a Rule 75” following his interaction with the corrections employee, Fisher said.
‘Unfair, inhumane, and unjust’
While Vermont Superior Court Judge Dickson Corbett takes Tuesday’s arguments under advisement, Morgan remains incarcerated, waiting for the Department of Corrections to approve a residence for him.
Fisher, the department’s attorney, said Morgan’s first residence had been denied because he would have been living with someone who requires an elevated level of care, and the agency in charge of caring for that person said Morgan would need to live six months on furlough before he was allowed to live in the home.
Morgan submitted a second residence, and said on Tuesday he already has a job lined up nearby. The approval process remains ongoing. Last time Morgan was approved for furlough, it took six months for his housing to be approved, he said.
Concerned that Morgan remained behind bars despite his disproven furlough violation, a bipartisan group of five state representatives wrote to Nick Deml, commissioner of the corrections department, urging Morgan’s release.
Rep. Mary-Katherine Stone, D/P-Burlington; Rep. Casey Toof, R-St. Albans Town; Rep. Mike Rice, D-Dorset; Rep. Esme Cole, D-Hartford; and Rep. Jay Hooper, D-Randolph, all cosigned the letter, written last Thursday.
“Mr. Morgan’s continued incarceration is unfair, inhumane, and unjust,” they wrote in their Sept. 7 letter. The group acknowledged Vermont’s housing crisis, and the particular dearth of affordable housing, but wrote that “holding an innocent man behind bars for a crime that he has been acquitted of on the basis of a lack of housing reflects a failure of a system for which Mr. Morgan should not bear responsibility.
“We urge you to release Matthew Morgan and to provide more transparency about the Department of Corrections processes regarding housing approval and timely release of those under your supervision,” they continued.
After VTDigger inquired with the department about the letter, Deml issued a response to the lawmakers on Tuesday afternoon.
In it, Deml wrote that “Mr. Morgan is not held on recently dismissed charges raised in your letter,” instead highlighting 41 convictions against Morgan affecting his sentence. Morgan’s minimum release date was in 2019, and his maximum sentence ends in 2045, he wrote.
“Due to the nature, volume, and seriousness of Mr. Morgan’s offenses, the Department will not waive the residence requirement for this individual,” Deml wrote, noting that Morgan had not yet “identified an acceptable residence.”
It remains unclear when Morgan may have a residence approved. There is no deadline for the court to issue a decision in his lawsuit seeking release.