High Court condemns Department of Corrections for near ‘procedural mockery’ in discharge program

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Karen Russell Carroll
Vermont Supreme Court Justice Karen Russell Carroll in 2017. Carroll wrote a unanimous decision this month that criticized the Department of Corrections for its handling of leave cases, demanding that the department “do better for people. subject to the rules ”. File photo by Mark Johnson / VTDigger

The Vermont Supreme Court criticized the state’s Department of Corrections this month for its handling of discharge cases, calling the system “procedural derision” and demanding that the department “do better for those subject to the rules. “.

Despite his harsh words to the corrections service, the court ruled in the ministry’s favor in a decision in the case of Anthony Davey, which challenged a process that led to his leave being revoked four months before he even had had a hearing.

Vermont’s leave system allows those convicted of a felony to serve part of their sentence in the community, rather than in jail, if they follow certain rules.

In a unanimous opinion on Dec. 17, Judge Karen Carroll wrote that Davey still had other steps to challenge his leave revocation ahead of whoever brought the case to the state’s highest court. But despite the ruling against Davey, Carroll used the last paragraph of his nine-page ruling to harshly criticize the Correctional Service.

“Despite our finding that the Grievor had another avenue to challenge the DOC’s revocation of his leave, we must address the DOC’s troubling procedural actions in this matter,” Carroll wrote.

“The facts alleged by the applicant – many of which are not disputed by the state – reveal a bureaucracy that comes very close to the kind of ‘procedural derision’ we have previously warned,” added the justice.

Carroll wrote that “the department’s history of flawed procedural processes does little to instill confidence” in the way the rules are enforced.

“The DOC must do better for people subject to the rules it promulgates and administers alone,” wrote the justice.

The High Court ruling follows an appeal by Davey of an earlier decision by Windsor County Judge Robert P. Gerety Jr. dismissing a habeas corpus petition brought by Davey.

A habeas corpus petition is a filing in a civil court on behalf of an incarcerated person asking a judge to declare that person’s imprisonment illegal.

Prisoner Rights Office attorney Annie Manhardt, who represented Davey, said on Monday that the decision clarifies and streamlines the process for future challenges. It also supports concerns clients have raised about the administration of the discharge program by the correctional service, Manhardt said.

“The decision was helpful in the sense that it gave us a roadmap on how to raise these issues going forward,” Manhardt said.

As to the last paragraph of the decision reprimanding the corrections service, Manhardt said: “It seemed justified given the seriousness of the violations in this case. Not having a hearing at all for four months is as bad as it gets. ”

Corrections Commissioner Nicholas Deml acknowledged his ministry’s shortcomings in a written statement.

“The tribunal was correct to point out the previous shortcomings,” said Deml. “Until we identify the flawed parts of our process, we can’t start fixing them. “

He added that the corrections service was working with the judiciary and “other stakeholders” to improve the process.

“But, I cannot stress enough the impact that the Covid-19 pandemic has imposed on our correctional system,” said Deml. “For the past two years, saving lives has been our priority above all else. Mitigating the virus affects staffing levels and standard ways of working at all levels. ”

Carroll’s decision presented some of the history of the case, from when Davey was convicted of multiple counts of sexual assault in 2014. He is currently serving a sentence with a minimum release date of March 30, 2017 and a maximum sentence of life imprisonment. .

Davey was released on leave on April 5, 2017 and lived for about two years with a parent in Pownal, on condition that he stayed away from places where children congregate.

Then, on March 6, 2019, he did not show up for a scheduled meeting with his parole officer and did not respond when the officer attempted to reach him by phone. Davey was placed under “flight” status and an arrest warrant was issued for him.

Davey was arrested by the US Marshals Service on October 27, 2020 and received a notice from the Correctional Service that he would have a hearing by October 29, 2020. However, that date came and went without a hearing. . After a “case staffing” by correctional staff, Davey learned he would be penalized and would have to serve an additional year in prison before he could be released back into the community on leave.

Then, on February 17, 2021, the Correctional Service sent Davey a new “escape” notice, with the date of the incident on February 17, nearly four months after his arrest, and advising him that he would have a hearing no later than February 20.

This hearing date came and went as well, and it was not until February 24 that the hearing took place. A hearing officer then declined to consider the delay in bringing the action or the due process arguments.

“The officer returned from a ninety minute informal deliberation with a supervisor, found the petitioner guilty of violating the leave authorization and fired the petitioner for staffing,” Carroll wrote in the decision.

Ultimately, this staffing took place on March 20 and upheld the one-year sanction for Davey, leading to the filing of the habeas corpus petition and later to the appeal to the Vermont Supreme Court.

In its ruling, the court wrote that Davey could bring an action under an amendment to the law governing leave that went into effect on January 1, 2021.

This review allows individuals to challenge discharge decisions from the prison service in a state civil court, where they would be required to show that the service “abused its discretion” by imposing a 90-day penalty or more for a violation.

Manhardt, Davey’s lawyer, said on Monday that it was not clear in the new law whether a person could only challenge the ultimate sanction or also the process leading to the decision making.

The High Court, Manhardt said, clarified that the action could not be challenged either.

Manhardt said Davey is still incarcerated and has already served his one-year sentence behind bars. He is currently awaiting a “release plan” from the corrections service, she said.

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Filed under:

Crime and justice

Tags: Department of Corrections, leave, prisons, Vermont Supreme Court

Alan j keays

About Alain

Alan J. Keays is the longtime former editor of the Rutland Herald. He reports on criminal justice issues for VTDigger.

E-mail: [email protected]

Follow Alain on Twitter @ajkvt

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