193 A.3d 510
Vt.2018Background
- Plaintiffs Kirk Wool and Bernard Carter are long‑term inmates convicted of aggravated sexual assault in 1992; both were designated Level C by the Vermont Department of Corrections and claim loss of access to programming that could support furlough/parole.
- Plaintiffs contend that 13 V.S.A. § 5301(7) (the victims’ “listed crimes” provision) and the DOC’s post‑incarceration Level C directives, applied retroactively, increased their punishment in violation of the Ex Post Facto Clause.
- Relevant statutory developments after 1992: addition of § 5301(7) (1999), conditional reentry statute (2001), and reintegration furlough authority (2005); DOC thereafter implemented a three‑tier classification (Levels A/B/C) and directives governing programming and reviews.
- DOC directives treat Level C inmates as focused on long‑term confinement and generally reference maximum‑date planning; Level C status requires listed/egregious offense plus risk scores and triggers biennial reviews and discretionary programming after minimum term if behavior is exemplary.
- Trial courts granted summary judgment for the Department in both cases; plaintiffs appealed and their appeals were consolidated. The Vermont Supreme Court reviews de novo and framed the question under the Supreme Court’s ‘‘sufficient risk’’ ex post facto test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive application of § 5301(7) and DOC Level C directives violates the Ex Post Facto Clause by increasing punishment | Wool/Carter: § 5301(7) and Level C directives, as applied, eliminate programming opportunities and make parole/furlough effectively unavailable, increasing punishment | DOC: Statutes/directives did not alter sentencing range or remove DOC/Parole Board discretion; classification merely informs exercise of existing discretion | No ex post facto violation; summary judgment for DOC affirmed |
| Whether § 5301(7) facially increases punishment | Plaintiffs: § 5301(7) is used to create a category effectively foreclosing release | DOC: § 5301(7) only lists crimes for victims’ rights; it does not change penalties or parole eligibility standards | § 5301(7) does not facially violate Ex Post Facto Clause; its use in DOC lists is attenuated |
| Whether DOC directives eliminated DOC/Parole Board discretion over programming/parole | Plaintiffs: Directives convert discretion into near‑absolute bar to early release | DOC: Directives require reviews, permit discretionary programming after minimum, and do not bind Parole Board | Directives altered manner of decisionmaking but did not eliminate discretion; speculative risk insufficient |
| Whether plaintiffs produced evidence showing practical implementation creates significant risk of increased incarceration | Plaintiffs: Implementation makes release unlikely; discovery was sought (Wool) | DOC: No record evidence that similarly situated inmates would have been released under pre‑existing rules | Plaintiffs failed to show through evidence that retroactive application likely altered their sentencing outcome; burden unmet |
Key Cases Cited
- Collins v. Youngblood, 497 U.S. 37 (U.S. 1990) (Ex Post Facto Clause prohibits retroactive laws that increase punishment)
- Cal. Dep’t of Corr. v. Morales, 514 U.S. 499 (U.S. 1995) (requires showing a significant risk that retroactive change increases punishment beyond speculative possibility)
- Garner v. Jones, 529 U.S. 244 (U.S. 2000) (applies ‘‘sufficient risk’’ inquiry to parole‑related changes and recognizes discretion can be reshaped by later rules)
- Chandler v. Pallito, 158 A.3d 296 (Vt. 2016) (Vermont Supreme Court held similar DOC classification/programming changes did not violate Ex Post Facto Clause)
- Cimaszewski v. Bd. of Prob. & Parole, 868 A.2d 416 (Pa. 2005) (explains plaintiff must show that, under prior law, parole would likely have been granted to prove ex post facto violation)