CHAPTER 1. PURPOSES, CONSTRUCTION, AND GENERAL DEFINITIONS

Sec.

§ 1. Purposes.

  1. The Department of Corrections created by 3 V.S.A. § 3081 shall have the purpose of developing and administering a correctional program designed to protect persons and property against offenders of the criminal law and to render treatment to offenders with the goal of achieving their successful return and participation as citizens of the State and community, to foster their human dignity and to preserve the human resources of the community.
  2. The Department shall formulate its programs and policies recognizing that almost all criminal offenders ultimately return to the community, and that the traditional institutional prisons fail to reform or rehabilitate, operating instead to increase the risk of continued criminal acts following release. The Department shall develop and implement a comprehensive program that will provide necessary closed custodial confinement of frequent, dangerous offenders, but that also will establish as its primary objective the disciplined preparation of offenders for their responsible roles in the open community. The Department shall ensure that the comprehensive program required by this subsection includes a process by which each offender sentenced to any term of imprisonment other than for life without parole, within 30 days after receiving his or her sentence, shall begin to develop and implement a plan preparing for return to the community.
  3. In order to implement its programs and policies the Department shall develop and maintain correctional facilities that shall include both residence-centered institutions and facilities reflecting nonresidence principles designed to facilitate the reintegration of the offender into the community.  These facilities shall utilize the supporting resources of probation and parole services, the increased cooperation of personnel in the fields of welfare, health, and education, and the increased participation of the citizens of the State in attempts to achieve correctional purposes and objectives.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2005, No. 63 , § 17.

History

Amendments--2005 Subsec. (b): Deleted "strive to" preceding "develop" in the second sentence, and added the third sentence.

ANNOTATIONS

1. Construction.

Statutes setting forth purposes of Department of Corrections and responsibilities of Commissioner did not compel conclusion that Vermont furlough statute required individual furlough assessments for each inmate prior to inmate's minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

Cited. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976); State v. Berard, 154 Vt. 306, 576 A.2d 118 (1990); Nash v. Coxon, 155 Vt. 336, 583 A.2d 96 (1990).

§ 2. Construction.

  1. The provisions of this title shall be liberally construed in order to effectuate the general purposes stated in section 1 of this title.
  2. The discretionary powers authorized by this title shall be exercised in accordance with the criteria stated in the title.  If these criteria are not dispositive in a particular instance, the general purposes established in section 1 of this title shall be controlling.

    Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

§ 2a. Restorative justice.

  1. State policy.  It is the policy of this State that principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or convicted of criminal offenses, and how the State responds to persons who are in contempt of child support orders. The policy goal is a community response to a person's wrongdoing at its earliest onset, and a type and intensity of sanction tailored to each instance of wrongdoing. Policy objectives are to:
    1. Resolve conflicts and disputes by means of a nonadversarial community process.
    2. Repair damage caused by criminal acts to communities in which they occur, and to address wrongs inflicted on individual victims.
    3. Reduce the risk of an offender committing a more serious crime in the future, that would require a more intensive and more costly sanction, such as incarceration.
  2. Implementation.  It is the intent of the General Assembly that law enforcement officials develop and employ restorative justice approaches whenever feasible and responsive to specific criminal acts, pursuant to 3 V.S.A. §§ 163 and 164, concerning court diversion; 13 V.S.A. chapter 221, concerning sentencing; and the provisions of this title, concerning persons in the custody of the Commissioner of Corrections. It is the further intent of the General Assembly that such restorative justice programs be designed to encourage participation by local community members, including victims, when they so choose, as well as public officials, in holding offenders accountable for damage caused to communities and victims, and in restoring offenders to the law-abiding community, through activities:
    1. That require offenders to:
      1. acknowledge wrongdoing and apologize to victims;
      2. make restitution for damage to the victims, consistent with provisions of 13 V.S.A. chapter 221 and of this title;
      3. make reparation for damage to the community by fulfilling a community service; and
      4. when relevant, successfully complete treatment addressing the offense or other underlying problematic behavior, or undertake academic or vocational training or other self-improving activity.
    2. That aid in the recovery of victims, recognizing that victims, particularly of violent crime, often suffer lifelong effects and, accordingly, must feel safe and involved in any program offered to assist them.
    3. That help in identifying the causes of crime and ways community members and municipal and State government can reduce or prevent crime in the future.

      Added 1999, No. 148 (Adj. Sess.), § 62, eff. May 24, 2000; amended 2011, No. 119 (Adj. Sess.), § 8.

History

Amendments--2011 (Adj. Sess.) Subsec. (a): Inserted "and how the state responds to persons who are in contempt of child support orders" following "persons charged with or convicted of criminal offenses".

§ 3. General definitions.

As used in this title:

  1. "Child" means any person:
    1. charged with having committed a delinquent act as defined in 33 V.S.A. § 5102 or adjudicated a delinquent and committed to the custody of the Commissioner; or
    2. charged with being or adjudicated unmanageable as defined by 33 V.S.A. § 5102 (3)(C) and (D), and committed to the custody of the Commissioner for Children and Families and subsequently transferred to the custody of the Commissioner.
    3. [Repealed.]
  2. "Commissioner" means the Commissioner of Corrections.
  3. "Correctional facility" or "facility" means any building, enclosure, space, or structure of or supported by the Department and used for the confinement of persons committed to the custody of the Commissioner, or for any other matter related to such confinement.
  4. "Department" means the Department of Corrections.
  5. "Inmate" means any person, not a child, committed to the custody of the Commissioner pursuant to the law of the State and subsequently committed to a correctional facility and any person confined at a correctional facility during the pendency of a prosecution against him or her.
  6. "Law" includes the laws and ordinances of the State, its political subdivisions, and municipalities.
  7. "Law enforcement officer" means a State Police officer, a sheriff, a deputy sheriff, a municipal police officer, a constable, the Commissioner, or a member of the Department of Corrections when appointed in writing by the Commissioner and when his or her appointment is filed in the Office of the Secretary of State.  The Commissioner or such member shall have the same powers as a sheriff.
  8. "Offender" means any person convicted of a crime or offense under the laws of this State, and, for purposes of work crew, a person found in civil contempt under 15 V.S.A. § 603 .
  9. "Supervising officer" means the highest administrative officer in charge of any correctional facility.
  10. "Correctional officer" means any person who is an employee of the Department of Corrections whose official duties or job classification includes the supervision or monitoring of a person on parole, probation, or serving any sentence of incarceration whether inside or outside a correctional facility, and who has received training, as approved by the Commissioner of Corrections, as provided in section 551a of this title.
  11. "Restorative justice program" means a program developed and implemented by the Commissioner, consistent with State policy and legislative intent as provided by section 2a of this title.
  12. Despite other names this concept has been given in the past or may be given in the future, "segregation" means a form of separation from the general population that may or may not include placement in a single-occupancy cell and that is used for disciplinary, administrative, or other reasons, but shall not mean confinement to an infirmary or a residential treatment setting for purposes of evaluation, treatment, or provision of services.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 152 (Adj. Sess.), § 1; 1999, No. 148 (Adj. Sess.), § 63, eff. May 24, 2000; 2011, No. 119 (Adj. Sess.), § 9; 2013, No. 131 (Adj. Sess.), § 130; 2017, No. 78 , § 3.

History

Reference in text. Subdiv. (1)(B) refers to "unmanageable" children. Children formerly defined as unmanageable under former 33 V.S.A. § 632 are now defined as children in need of care or supervision under 33 V.S.A. § 5102.

2013. In subdivs. (1)(A) and (B), substituted "33 V.S.A. § 5102" for "33 V.S.A. § 5502" to reflect repeal and recodification pursuant to 2007, No. 185 (Adj. Sess.), §§ 1 and 13.

Revision note - Reference to "section 632" in subdivs. (1)(A) and (1)(B) changed to "section 5502" to conform to recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

Amendments--2017. Subdiv. (12): Added.

Amendments--2013 (Adj. Sess.). Subdiv. (1)(B): Substituted "by 33 V.S.A. § 5102(3)(C) and (D)" for "in 33 V.S.A. § 5102" following "as defined".

Subdiv. (1)(C): Repealed.

Amendments--2011 (Adj. Sess.). Subdiv. (8): Added "and, for purposes of work crew, a person found in civil contempt under 15 V.S.A. § 603".

Amendments--1999 (Adj. Sess.). Subdiv. (11): Added.

Amendments--1997 (Adj. Sess.). Subdiv. (10): Added.

ANNOTATIONS

1. Correctional facility.

Plain language of the definition of "correctional facility" demonstrates that it encompasses out-of-state private prisons that house offenders under Department of Corrections custody. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

§ 4. Standard measure of recidivism.

The Department shall calculate the rate of recidivism based upon offenders who are sentenced to more than one year of incarceration who, after release from incarceration, return to prison within three years for a conviction for a new offense or a violation of supervision resulting, and the new incarceration sentence or time served on the violation is at least 90 days.

Added 2013, No. 41 , § 1, eff. May 20, 2013.

CHAPTER 3. ADMINISTRATION OF THE DEPARTMENT

Sec.

§ 101. Powers of the Department.

The Department is charged with the following powers:

  1. to establish, maintain, and administer such State correctional facilities and programs as may be required for the custody, control, correctional treatment, and rehabilitation of committed persons, and for the safekeeping of such other persons as may be committed to the Department in accordance with law;
  2. to operate diagnostic and treatment programs and such other programs deemed desirable to treat persons committed to the Department and to further other purposes and objectives of this title;
  3. to administer the supervision of persons placed on probation and released on parole and to administer probation and parole services;
  4. to employ such officers, employees and agents as deemed necessary to discharge the functions of the Department;
  5. to establish standards for the management, operation, personnel, and program of all correctional facilities in the State;
  6. to act in an advisory capacity in assisting law enforcement agencies, and communities in the prevention of crime and delinquency;
  7. to enforce and administer such other laws as may be vested in the Department;
  8. to enter into agreements for assistance in support of the operation of jails or lockups in accordance with criteria established by the Department, and to use the jails or lockups as provided in this title;
  9. notwithstanding any other provision of law, the State and the Department shall not be responsible for the expense of detaining a person in custody except as provided in this title;
  10. to charter, establish, and fund through grants such municipal entities or nonprofit organizations as may be required for providing crime prevention and restorative justice programs for offenders, victims of crime, and the public.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1981, No. 185 (Adj. Sess.), § 1, eff. April 22, 1982; 1997, No. 147 (Adj. Sess.), § 106b; 1999, No. 148 (Adj. Sess.), § 64, eff. May 24, 2000.

History

Amendments--1999 (Adj. Sess.). Subdiv. (10): Substituted "restorative justice programs for" for "outreach services to" preceding "offenders".

Amendments--1997 (Adj. Sess.). Subdiv. (10): Added.

Amendments--1981 (Adj. Sess.). Subdiv. (8): Added "and to use the jails or lockups as provided in this title" at the end of the subdiv.

Department of Corrections provisions relating to contraband. 2013, No. 163 (Adj. Sess.), § 2 provides: "(a) The Commissioner of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 regarding procedures for conducting searches of the personal belongings of any person who enters the secure portion of a State correctional facility. The Commissioner shall consult with the Joint Legislative Corrections Oversight Committee in developing these rules and shall report periodically to the Committee regarding the implementation of these procedures and any issues of concern.

"(b) The Commissioner shall identify the types and amounts of contraband, and the methods used to transport contraband into each State correctional facility, including perimeter breaches, mail, and contacts with visitors. The Commissioner shall include this information in the Commissioner's regular monthly reports to the Joint Legislative Corrections Oversight Committee from July 1, 2014 through December 1, 2014.

"(c) On or before December 1, 2015, the Commissioner shall make recommendations to the Joint Legislative Corrections Oversight Committee regarding strategies to prevent contraband from entering State correctional facilities.

"(d) The Commissioner may conduct preemployment drug screening in accordance with 21 V.S.A. § 512 of all permanent and temporary employees hired after July 1, 2014 and may conduct background investigations, including obtaining criminal history records in accordance with 20 V.S.A. § 2056a, prior to hiring any permanent or temporary employee.

"(e) On or before October 15, 2014, the Department of Corrections shall prepare and submit a report to the Joint Legislative Corrections Oversight Committee on security and safety concerns at State correctional facilities arising from public or private entities employing offenders through work programs."

ANNOTATIONS

Cited. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976); Town of Stowe v. County of Lamoille, 134 Vt. 402, 362 A.2d 159 (1976); State v. Powers, 173 Vt. 550, 789 A.2d 962 (2001).

§ 102. Commissioner of Corrections; appointment; powers; responsibilities.

  1. The Department is under the direction of the Commissioner, who shall be appointed by the Secretary of Human Services with the approval of the Governor and shall serve at the pleasure of the Secretary. The Commissioner's salary shall be fixed by the Governor within the appropriation for that purpose.
  2. The Commissioner is charged with the following powers:
    1. To supervise the administration of the Department.
    2. To exercise supervisory power over and to establish and administer programs and policies for the operation of the correctional facilities of the Department, and for the correctional treatment of persons committed to the custody of the Commissioner.
    3. To appoint and remove a Deputy Commissioner as provided in 3 V.S.A. § 3053 and delegate appropriate powers and duties to the Deputy.
    4. To appoint and remove subordinate officers of the Department in accordance with law, and, notwithstanding the provisions of any other statute or law, to delegate any authority conferred on him or her by statute to any designee named by him or her in writing.
    5. To order the assignment and transfer of persons committed to the custody of the Commissioner to correctional facilities, including out-of-state facilities.
    6. To establish, consolidate, or abolish divisions within the Department, and to establish, consolidate, or abolish bureaus, special units, and other subdivisions in any division.
    7. To accept and receive, on behalf of the Department or any facility thereof, any bequest or gift of personal or real property made to the Department or any facility thereof, and to hold and use the property for the purposes specified in such bequest, devise, or gift.
    8. To cooperate with and accept funds from the federal government or any agency thereof for the purpose of exercising the powers and responsibilities stated in this section.
    9. To conduct any necessary inquiry or investigation into matters related to correctional programs and responsibilities of the Department.
    10. To utilize the resources of the Department to apprehend any person escaping from a correctional facility.  In performing such function, the Commissioner and any authorized employee of the Department shall have all the power and authority of a law enforcement officer.
    11. To contract for services or purchase, lease, or rent personal property to carry out the functions of the Department, and to lease or rent month to month residential housing for community-based probation and parole programs. All other real property required by corrections programs shall be purchased, leased, or rented by the Commissioner of Buildings and General Services.
    12. To enter into contracts with private collection agencies for the collection of supervisory fees imposed by this title and fines, penalties, and restitution imposed under Title 13. The Commissioner may agree to pay collection agencies a fixed rate for services rendered or a percentage of the amount collected that shall be added to any amounts and may be recovered as an administrative cost of collection. Any such fixed rate or percentage may be deducted directly by the collection agency on a pro rata basis from any portion of the money so collected.
    13. To establish community reparative boards pursuant to chapter 12 of this title.
    14. To delegate to locally established boards or justice centers, the authority to assist, through use of community resources, in developing and implementing restorative justice programs for offenders, victims of crime, and members of the community.
    15. To rely upon the expertise of Department employees to provide core and substantive supervision of offenders and risk assessment determinations for the delivery of correctional services in both residential and nonresidential settings.
    16. With the approval of the Secretary of Human Services, to accept federal grants made available through federal crime bill legislation, provided that the Commissioner shall report the receipt of a grant under this subdivision to the Chairs of the House Committee on Corrections and Institutions and the Senate Committee on Institutions.
  3. The Commissioner is charged with the following responsibilities:
    1. To make rules and regulations for the governing and treatment of persons committed to the custody of the Commissioner, the administration of correctional facilities, and the regulation of employees under the jurisdiction of the Commissioner.
    2. To establish and operate correctional diagnostic centers.
    3. To establish and maintain at each correctional facility a program of treatment designed as far as practicable to prepare and assist each inmate to assume his or her responsibilities and to participate as a citizen of the State and community.
    4. To establish facilities and develop programs to provide inmates at correctional facilities with such educational and vocational training deemed to be appropriate to the treatment of the inmates.
    5. To prescribe rules and regulations for the maintenance of discipline and control at each correctional facility.
    6. To maintain security, safety, and order at the correctional facilities and act to subdue any disorder, riot, or insurrection that may occur at any facility.  The Commissioner, for such purpose, may enlist the assistance of any citizen of the State, and shall have the obligation to render reasonable compensation to any person providing such assistance.
    7. To establish, maintain, and administer such regional or other community correctional facilities as are necessary for the confinement and treatment of inmates either before or after the conviction of any offense, and to use the jails and lockups as provided in this title.  Such facilities shall be used for the confinement of persons awaiting court disposition and the confinement of inmates serving short terms and such other inmates as may be assigned to such facilities for furloughs, work release, and other prerelease treatment.
    8. To establish in any appropriate correctional facility a system of classification of inmates, to establish a program for each inmate upon his or her commitment to the facility and to review the program of each inmate at regular intervals, and to effect necessary and desirable changes in the inmate's program of treatment.
    9. To develop and maintain research programs and collect statistical information concerning persons committed to the custody of the Commissioner, sentencing practices, and correctional treatment.
    10. To inspect at regular intervals all correctional facilities.
    11. To close any correctional facility that he or she deems inadequate.
    12. To establish training programs for new employees, and to establish such in-service training programs as he or she deems advisable.
    13. [Repealed.]
    14. To collect a fee up to the amount of $30.00 per month as a supervisory fee from each person under the supervision of the Department who is on probation, furlough, pre-approved furlough, supervised community sentence, or parole. Supervisory fees collected by the Department shall be credited to a special supervision and victim restitution fund, established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5, for this purpose. The Commissioner shall adopt rules governing the collection of supervisory fees, including the maximum period of time offenders are subject to supervision fees and the offender's ability to pay such fees.
    15. To lease farms or lands, with the approval of the Department of Buildings and General Services in accordance with 29 V.S.A. § 160 , and to administer and manage such farms.
    16. To exercise all powers and perform all duties established in the Office of Commissioner by the Agency of Human Services and stated in 3 V.S.A. §§ 3052 and 3053.
    17. To exercise all powers and perform all duties necessary and proper in carrying out his or her responsibilities and in fulfilling the purposes and objectives of this title.
    18. To establish within the Department programs for inmates to participate in work, industry, community service, public works activities, and employment at correctional facilities.
    19. If a treaty in effect between the United States and a foreign country provides for the transfer or exchange of a convicted and sentenced offender to the country of which the offender is a citizen or national, the Commissioner may, with the written consent of such offender obtained only after the opportunity to consult with counsel, and in accordance with the terms of the treaty, consent to the transfer or exchange of any such offender and take any other action necessary to initiate the participation of the State in the treaty.
    20. To utilize the Department of Buildings and General Services' competitive bidding practices in order to determine the most effective and cost-effective alternatives for housing inmates in any out-of-state correctional facility.
    21. The Commissioner is authorized to contract for payment processing services for receiving deposits to inmate financial accounts. The Department, directly or through a processing agent, may assess a fee for deposits to each account so long as the fee does not exceed the costs incurred.
    22. To notify local and State law enforcement officers of the following information regarding a person released from incarceration on probation, parole, or furlough and residing in the community: name; address; conditions imposed by the court, parole board, or Commissioner; and the reason for placing the person in that community.

      Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 1; 1977, No. 233 (Adj. Sess.), § 5a, eff. April 17, 1978; 1981, No. 185 (Adj. Sess.), § 2, eff. April 22, 1982; 1983, No. 147 (Adj. Sess.), § 4(a), eff. April 11, 1984; 1993, No. 54 , § 1; 1995, No. 178 (Adj. Sess.), § 116; 1995, No. 185 (Adj. Sess.), § 47, eff. May 22, 1996; 1995, No. 186 (Adj. Sess.), § 34; 1997, No. 155 (Adj. Sess.), §§ 15, 16; 1999, No. 148 (Adj. Sess.), § 65, eff. May 24, 2000; 2001, No. 65 , § 10, eff. June 16, 2001; 2001, No. 142 (Adj. Sess.), § 170; 2001, No. 149 (Adj. Sess.), § 43, eff. June 27, 2002; 2005, No. 177 (Adj. Sess.), § 3; 2007, No. 76 , § 33d; 2007, No. 179 (Adj. Sess.), § 2; 2009, No. 33 , § 48; 2009, No. 43 , § 34; 2009, No. 157 (Adj. Sess.), § 17a; 2011, No. 139 (Adj. Sess.), § 21, eff. May 14, 2012; 2017, No. 113 (Adj. Sess.), § 167.

History

Revision note. At the end of subdiv. (b)(11), substituted "commissioner of buildings and general services" for "commissioner of state buildings" in light of 1995, No. 148 (Adj. Sess.), § 4.

In subdiv. (c)(15), substituted "department of buildings and general services" for "state buildings department" for purposes of conformity with 1995, No. 148 (Adj. Sess.), § 4(c)(1).

Amendments--2017 (Adj. Sess.) Subsec. (a): Substituted "for that purpose" for "therefor" following "appropriation" in the second sentence.

Amendments--2011 (Adj. Sess.). Subdiv. (b)(16): Substituted "house committee on corrections and institutions and the senate committee on institutions" for "senate committee on institutions, the house committee on corrections and institutions, and the joint fiscal committee".

Amendments--2009 (Adj. Sess.) Subdiv. (c)(22): Added.

Amendments--2009 Subdiv. (b)(16): Added by Act No. 43.

Subdiv. (c)(13): Deleted by Act No. 33.

Amendments--2007 (Adj. Sess.). Subdiv. (b)(5): Added ", including out-of-state facilities" at the end.

Amendments--2007. Subsec. (c): Added subdiv. (21).

Amendments--2005 (Adj. Sess.). Subdiv. (c)(19): Substituted "and a foreign country" for "and Canada".

Amendments--2001 (Adj. Sess.). Subdiv. (c)(14): Amended generally.

Subdiv. (c)(20): Added.

Amendments--2001. Subdiv. (b)(12): Substituted "be added to" for "not to be deducted from" preceding "amounts" and "and" for "but" thereafter in the second sentence, and added the third sentence.

Amendments--1999 (Adj. Sess.). Subsec. (b): Added subdivs. (13)-(15).

Amendments--1997 (Adj. Sess.). Added subdiv. (b)(12) and in subdiv. (c)(14) substituted "adopt rules" for "make rules and regulations" and substituted "supervisory fees" for "overdue supervisory fees, fines and restitution" in the fourth sentence and deleted the last sentence, which was similar to subdiv. (b)(12).

Amendments--1995 (Adj. Sess.) Subdiv. (b)(11): Act. No. 185 deleted "real or" preceding "personal property" near the beginning of the first sentence, added "and to lease or rent month to month residential housing for community based probation and parole programs" at the end of the first sentence, and added the second sentence.

Subdiv. (c)(14): Added by Act Nos. 178 and 186.

Subdiv. (c)(19): Added by Act. No. 185.

Amendments--1993. Subdiv. (c)(18): Added.

Amendments--1983 (Adj. Sess.). Subdiv. (c)(15): Substituted "department" for "division" following "state buildings".

Amendments--1981 (Adj. Sess.). Subdiv. (c)(7): Added "and to use the jails and lockups as provided in this title" following "offense" at the end of the first sentence.

Amendments--1977 (Adj. Sess.). Subdiv. (c)(14): Repealed.

Amendments--1973. Subdiv. (b)(10): Added "and any authorized employee of the department" following "commissioner" in the second sentence.

Repeal of expiration of subdiv. (c)(14). 1995, No. 186 (Adj. Sess.), § 37, as amended by 1997, No. 59 , § 20 and by 1997, No. 155 (Adj. Sess.), § 18(b), provided that subdiv. (c)(14), as added by 1995, No. 186 (Adj. Sess.) § 34, would expire on July 1, 1999. However, 1999, No. 49 , § 194, eff. June 2, 1999, amended that provision to delete the reference to the expiration of the subdivision.

Cross References

Cross references. Duty to calculate sentences, see § 7044 of Title 13.

Notice of escape to victims of crime, see § 5305 of Title 13.

Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

ANNOTATIONS

Analysis

1. Construction.

Statutes setting forth purposes of Department of Corrections and responsibilities of Commissioner did not compel conclusion that Vermont furlough statute required individual furlough assessments for each inmate prior to inmate's minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

Commissioner of Department of Corrections acted within authority conferred upon him by Legislature in promulgating policy which would make prisoners convicted of violent felonies ineligible for furlough until expiration of their minimum sentences. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

2. Transfer of inmates.

Authority to enter into contract to transfer Vermont inmates to an out-of-state facility was well within the powers reasonably and necessarily implied by the fundamental obligation of the Commissioner of the Department of Corrections to maintain prison safety and order, and the Commissioner's express and unfettered statutory authority to designate, assign and transfer inmates. Daye v. State, 171 Vt. 475, 769 A.2d 630 (2000).

3. Private collection agencies.

The Legislature's grant of power to contract with private collection agencies for the collection of court-ordered fines does not prevent a trial court from ordering a different means of collection when individual circumstances merit it in the probation context. State v. Powers, 173 Vt. 550, 789 A.2d 962 (2001).

The Legislature's grant of power to contract with private collection agencies for the collection of court-ordered fines does not preclude the Department and the Commissioner from carrying out their responsibility "[t]o administer the supervision of persons placed on probation," and "maintain general supervision of persons placed on probation... consistent with any orders of the court," even when those court orders specify a means of payment of a fine that would prevent it from being contracted out to a collection agency. State v. Powers, 173 Vt. 550, 789 A.2d 962 (2001).

4. Inmate treatment programs.

Establishment of programming requirements falls within the Commissioner of Corrections' explicit power to establish inmate treatment programs. The Department of Corrections is not an inferior court or tribunal of the Superior Court of Vermont, nor is it performing the functions of a quasi-judicial body when it establishes programming requirements; rather, the Commissioner is fulfilling his statutorily created responsibilities to establish classification and commitment programs for each inmate in a correctional facility and to periodically review such programming decisions. Rheaume v. Pallito, 190 Vt. 245, 30 A.3d 1263 (2011).

While the decision to designate a sex offender as highly dangerous could be termed a quasi-judicial act - likely the reason why the Legislature explicitly provided for judicial review of designation decisions - the promulgation of programming requirements falls within the broad discretion of the Department of Corrections to determine what mode of treatment best serves individual inmates. Broad discretion must be granted to correctional authorities to determine what mode of treatment will best serve the individual inmate, and nothing in the statutes limits that discretion. Rheaume v. Pallito, 190 Vt. 245, 30 A.3d 1263 (2011).

Cited. Wetmore v. Smith, 130 Vt. 618, 298 A.2d 567 (1972); Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975); Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976); Town of Stowe v. County of Lamoille, 134 Vt. 402, 362 A.2d 159 (1976); State v. Berard, 154 Vt. 306, 576 A.2d 118 (1990); Nash v. Coxon, 155 Vt. 336, 583 A.2d 96 (1990); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993); State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998); Holcomb v. Lykens, 337 F.3d 217 (2d Cir. 2003).

§ 103. Inquiries and investigations into the administration of the Department.

  1. The Commissioner at all times shall have unlimited access to all correctional facilities and to all records and books at the facilities, and may conduct inquiries and investigations concerning all matters under his or her jurisdiction.
  2. The Commissioner may seek the cooperation of any judge, prosecuting officer, sheriff, police officer, or other court or law enforcement official or employee possessing information relating to an inquiry or investigation conducted in accordance with subsection (a) of this section.
  3. In any inquiry or investigation conducted by the Commissioner, he or she shall have the same powers as are possessed by Superior Court judges in chambers, and which shall include the power to:
    1. administer oaths;
    2. compel the attendance of witnesses; and
    3. compel the production of documentary evidence.
  4. If any person disobeys any lawful order or subpoena issued by the Commissioner pursuant to this section or refuses to testify to any matter regarding which he or she may be questioned lawfully, any Superior Court judge, upon application by the Commissioner, shall order the obedience of the person in the same manner as if the person had disobeyed an order or subpoena of the Superior Court judge.
  5. The fees and traveling expenses of witnesses shall be the same as are allowed witnesses in the Superior Courts of the State and shall be reimbursed by the Commissioner out of any appropriation or funds at the disposal of the Department.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 185.

History

Amendments--2009 (Adj. Sess.) Deleted "district court or" preceding "superior judges" in subsec. (c), preceding "superior judge" in subsec. (d), and preceding "superior courts" in subsec. (e).

Amendments--1973 (Adj. Sess.). Subsec. (e): Substituted "superior" for "county" preceding "courts".

§ 104. Notification of community placements.

  1. The Department shall provide notice when appropriate and at the Department's sole discretion to affected State, county, and local criminal justice entities and to local legislative bodies for the purposes of permitting public input and enhancing offender reintegration into the community whenever an offender is released under furlough after serving a sentence of incarceration in a correctional facility. The notice may include the offender's name and any aliases, a recent photograph and physical description, community placement address, criminal history, current offense or offenses, and home address, plus a description and license number of any motor vehicle used by the offender, and the name, address, and telephone number of the correctional entity supervising the offender.
  2. The Department shall provide notice to affected State, county, and local criminal justice entities and to local legislative bodies for the purposes of permitting public input and enhancing offender reintegration into the community, at the point at which the Department has made arrangements to house in any apartment, duplex, or other kind of housing three or more offenders. If the housing concerned was not previously used to house offenders, such notice shall be given at least 15 days prior to placing any offender in such housing. If the housing concerned had previously housed one or two offenders only, such notice shall be given at least 15 days prior to placing a third offender in such housing.
  3. The Commissioner shall not implement this section until rules for doing so have been adopted. Such rules shall be adopted not later than September 1, 1999 through use of emergency rule-making procedures, if necessary.
  4. [Repealed.]
  5. The Commissioner of Corrections shall annually, by January 15, report to the House Committee on Corrections and Institutions and the Senate Committee on Institutions on the implementation of this section during the previous 12 months.

    Added 1999, No. 29 , § 56, eff. May 19, 1999; amended 1999, No. 148 (Adj. Sess.), § 69, eff. May 24, 2000; 2011, No. 139 (Adj. Sess.), § 22, eff. May 14, 2012.

History

Amendments--2011 (Adj. Sess.). Subsec. (e): Substituted "house committee on corrections and institutions and the senate committee on institutions" for "house and senate committees on institutions and on judiciary".

Amendments--1999 (Adj. Sess.). Subsec. (d): Substituted "July 1, 2002" for "July 1, 2000".

Subsec. (e): Added.

Expiration of subsec. (a); repeal of expiration. 1999, No. 29 , § 56, which enacted this section, provided in subsec. (d) of this section that subsec. (a) of this section shall expire on July 1, 2000. Then, 1999, No. 148 (Adj. Sess.), § 69, eff. May 24, 2000, amended subsec. (d) of this section to provide that subsec. (a) expire on July 1, 2002. However, 2001, No. 142 (Adj. Sess.), § 170b provided for the repeal of subsec. (d) so that subsec. (a) is no longer subject to expiration.

Report repeal delayed. 2015, No. 131 (Adj. Sess.), § 16 provides that the report set forth in 28 V.S.A. § 104(e) "shall not be subject to review under the provisions of 2 V.S.A. § 20(d) (expiration of required reports) until July 1, 2020".

§ 105. Caseload capacity.

  1. Corrections officers designated to work exclusively with offenders in the community who are 21 years of age and younger shall have caseloads of not more than 25 youths.
  2. The Department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender:
    1. Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce risk of reoffense.
    2. Response supervision, which shall mean monitoring of the offender's compliance with conditions of probation or parole, including staff responding to violation behavior.
    3. Administrative supervision, which shall mean monitoring of the offender's address and compliance with the law.
  3. An offender may be reassigned to a lower supervision level after a reassessment of the offender's risk.
  4. The Department shall establish the following caseload ranges for offender profiles:
    1. All listed offenders requiring risk management shall be supervised at not more than 45 offenders per corrections officer.
    2. All nonlisted offenders requiring risk management shall be supervised at not more than 60 offenders per corrections officer.
    3. All offenders requiring response supervision shall be supervised at not more than 150 offenders per corrections officer.
    4. All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the Department.
    5. When there is a mixed profile caseload in which a single corrections officer supervises offenders with different supervision levels and at least one-third of the offenders require a more intensive supervision demand than the other offenders, the caseload shall be supervised at the lowest level of offender-to-staff ratio.
  5. If the caseloads established in subsection (d) of this section are exceeded for longer than 120 days, the Commissioner shall be authorized to designate community correctional officers to partially augment staffing caseloads. If such designation does not remedy the excess caseloads:
    1. The Commissioner shall report to the Joint Legislative Justice Oversight Committee the causes for the excess and proposals for addressing them.
    2. The Department shall have the authority, if the Commissioner believes that the excess will not be eliminated within 60 days, to hire persons from the positions drawn from the State's vacancy pool as limited service employees for an initial period of up to one year. The initial period may be extended for up to two more years if the Department deems it necessary.
  6. Each time a position is established under subdivision (e)(2) of this section, the Commissioner shall report it at the next meeting of the Joint Corrections Oversight Committee. The costs for each position shall be presented in the Department's budget adjustment proposal and, if the positions are necessary for an ongoing period, in the Department's annual budget request.

    Added 2007, No. 179 (Adj. Sess.), § 6; amended 2019, No. 131 (Adj. Sess.), § 281.

History

Amendments--2019 (Adj. Sess.). Subdiv. (e)(1): Substituted "Legislative Justice" for "Corrections".

§ 106. Systems approach to community supervision of sex offenders.

  1. The Department of Corrections shall establish a comprehensive systems approach to the management of sex offenders, which employs longer and more intensive community supervision of high-risk sex offenders.  To accomplish this, the Department shall employ probation officers with training in the management of sex offenders sufficient to provide intensive community supervision and may use polygraph tests and prerelease and post incarceration treatment to promote rehabilitation.
  2. The Department shall create multidisciplinary case management teams, each involving as appropriate a probation or parole officer with training in supervision of sex offenders, a treatment provider, a victim's advocate, a representative of the Department for Children and Families, and a forensic polygraph examiner.  These professionals shall collaborate, prioritizing community safety and the protection of former victims, and shall participate and cooperate in compliance with 13 V.S.A. § 5415 with the local special investigation unit.  These teams shall address the specific treatment and supervision needs of a particular offender to enhance protection of the public, to assist that offender in reintegrating safely into the community, to support and protect known victims, and to respond to any new concerns about risk of reoffense.
  3. The Department of Corrections shall designate and train probation and parole officers in each district office to supervise sex offenders, to provide consistent and intensive case management, and to impose and enforce conditions uniquely suited to aiding the offenders' reintegration into the community.  These officers shall not have a caseload of more than 45 offenders, except that a mixed caseload shall be managed pursuant to subdivision 105(d)(5) of this title.

    Added 2009, No. 1 , § 42.

§ 107. Offender and inmate records; confidentiality; exceptions; corrections.

    1. The Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 defining what are "offender and inmate records" produced or acquired by the Department. (a) (1)  The Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 defining what are "offender and inmate records" produced or acquired by the Department.
    2. As used in this section, the phrase "offender and inmate records" means the records defined under the rule required under subdivision (1) of this subsection.
  1. Offender and inmate records are exempt from public inspection and copying under the Public Records Act and shall be kept confidential, except that the Department:
    1. Shall release or permit inspection of such records if required under federal or State law, including 42 U.S.C. §§ 10805 and 10806 (Protection and Advocacy Systems).
    2. Shall release or permit inspection of such records pursuant to a court order for good cause shown or, in the case of an offender or inmate seeking records relating to him or her in litigation, in accordance with discovery rules.
    3. Shall release or permit inspection of such records to a State or federal prosecutor as part of a criminal investigation pursuant to a court order issued ex parte if the court finds that the records may be relevant to the investigation. The information in the records may be used for any lawful purpose but shall not otherwise be made public.
    4. Shall release or permit inspection of such records to the Department for Children and Families for the purpose of child protection, unless otherwise prohibited by law.
    5. Shall release or permit inspection of specific categories or types of offender and inmate records to specific persons, or to any person, in accordance with a rule that the Commissioner shall adopt pursuant to 3 V.S.A. chapter 25, provided that the Commissioner shall redact any information that may compromise the safety of any person, or that is required by law to be redacted, prior to releasing or permitting inspection of such records under the rule. The rule shall provide for disclosure of a category or type of record in either of the following circumstances:
      1. when the public interest served by disclosure outweighs the privacy, security, or other interest in keeping the record confidential; or
      2. in order to provide an offender or inmate access to offender and inmate records relating to him or her, unless:
        1. the category or type of record is confidential or exempt from disclosure under a law other than this section;
        2. providing access would unreasonably interfere with the Department's ability to perform its functions, including unreasonable interference due to the staff time or other cost associated with providing a category or type of record; or
        3. providing access may compromise the health, safety, security, or rehabilitation of the offender or inmate or of another person.
    1. Unless otherwise provided in this section or required by law, the rule required under subdivision (b)(5) of this section: (c) (1)  Unless otherwise provided in this section or required by law, the rule required under subdivision (b)(5) of this section:
      1. shall specify the categories or types of records to be disclosed and to whom they are to be disclosed, and shall not provide for any exceptions to disclosure of records that fall within these categories or types except for redactions required by law;
      2. shall specify which categories or types of records relating to an offender or inmate shall be provided to the offender or inmate as a matter of course and which shall be provided only upon request;
      3. may limit the offender's or inmate's access to include only records produced or acquired in the year preceding the date of the request;
      4. may limit the number of requests by an offender or inmate that will be fulfilled per calendar year, provided that the Department fulfills at least two requests by the offender or inmate per calendar year excluding any release of records ordered by a court;
      5. may specify circumstances when an offender's or inmate's right of access will be limited to an inspection overseen by an agent or employee of the Department;
      6. may provide that the Department has no obligation to provide an offender or inmate a record previously provided if he or she still has access to the record; and
      7. shall reflect the Department's obligation not to withhold a record in its entirety on the basis that it contains some confidential or exempt content, to redact such content, and to make the redacted record available.
    2. The Department shall provide records available to an offender or inmate under the rule free of charge, except that if the offender or inmate is responsible for the loss or destruction of a record previously provided, the Department may charge him or her for a replacement copy at $0.01 per page.
  2. Notwithstanding the provisions of 1 V.S.A. chapter 5, subchapter 3 (Public Records Act) that govern the time periods for a public agency to respond to a request for a public record and rights of appeal, the Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 governing response and appeal periods and appeal rights in connection with a request by an offender or inmate to access records relating to him or her maintained by the Department. The rule shall provide for a final exhaustion of administrative appeals not later than 45 days from the Department's receipt of the initial request.
  3. An offender or inmate may request that the Department correct a fact in a record maintained by the Department that is material to his or her rights or status, except for a determination of fact that resulted from a hearing or other proceeding that afforded the offender or inmate notice and opportunity to be heard on the determination. The rule required under subsection (d) of this section shall reference that requests for such corrections are handled in accordance with the Department's grievance process. If the Department issues a final decision denying a request under this subsection, the offender or inmate may appeal the decision to the Civil Division of the Superior Court pursuant to Rule 74 of the Vermont Rules of Civil Procedure. The court shall not set aside the Department's decision unless it is clearly erroneous.

    Added 2015, No. 137 (Adj. Sess.), § 5, eff. May 25, 2016; amended 2017, No. 192 (Adj. Sess.), § 1, eff. May 30, 2018.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 108. -119. [Reserved for future use.].

  1. Authority.  An education program is established within the Department of Corrections for the education of persons who have not completed secondary education or are assessed to have a moderate-to-high criminogenic need by one or more corrections risk assessments and who are committed to the custody of the Commissioner.
  2. Applicability of education provisions.  The education program shall be approved by the State Board of Education as an independent school under 16 V.S.A. § 166 , and shall be coordinated with adult education, special education, and career technical education.
  3. Program supervision.  The Commissioner of Corrections shall appoint a licensed administrator under 16 V.S.A. chapter 51 to serve as the Headmaster of Correction Education and coordinate use of other education programs by persons under the supervision of the Commissioner.
  4. Curriculum.  The education program shall offer a minimum course of study, as defined in 16 V.S.A. § 906 , and special education programs in accordance with the program description used for independent school approval.
  5. [Repealed.]
  6. Reimbursement payments.  The provision of 16 V.S.A. § 4012 , relating to payment for State-placed students, shall not apply to the Corrections education program.
  7. [Repealed.]
  8. Required participation.  All persons under the custody of the Commissioner who are under 23 years of age and have not received a high school diploma, or are assessed to have a moderate-to-high criminogenic need and are within 24 months of reentry shall participate in an education program. The Commissioner may approve the participation of other students, including individuals who are enrolled in an alternative justice or diversion program.

    Added 1987, No. 207 (Adj. Sess.), § 2; amended 1991, No. 204 (Adj. Sess.), § 11; 1997, No. 84 (Adj. Sess.), § 1; 2001, No. 149 (Adj. Sess.), §§ 38, 39, eff. June 27, 2002; 2007, No. 64 , § 4; 2007, No. 192 (Adj. Sess.), § 6.030; 2011, No. 63 , § E.337; 2011, No. 88 (Adj. Sess.), § 1, eff. April 25, 2012; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014; 2015, No. 23 , § 29; 2015, No. 58 , § E.337; 2015, No. 172 (Adj. Sess.), § E.337; 2019, No. 131 (Adj. Sess.), § 282.

History

2013 (Adj. Sess.). Subsec. (b): Substituted "career technical education" for "technical education".

Amendments--2019 (Adj. Sess.). Subsec. (h): In the first sentence, deleted "the age of" following "under" and inserted "years of age".

Amendments--2015 (Adj. Sess.). Section amended generally.

Amendments--2015. Subsec. (b): Act No. 23 substituted "education quality standards" for "school quality standards" in the first sentence.

Subsec. (h): Act No. 58 added the second sentence.

Amendments--2011 (Adj. Sess.). Subsec. (c): Substituted "a director of corrections education" for "an education supervisor" and "serve as the superintendent of the Community High School" for "supervise the community high school".

Subsec. (d): Inserted "and special education programs as required in 16 V.S.A. chapter 101" following "16 V.S.A. § 906".

Subsec. (e): Repealed.

Subsec. (h): Substituted "an education program" for "the education program".

Amendments--2011. Subsec. (g): Repealed.

Amendments--2007 (Adj. Sess.). Subsec. (c): Amended generally.

Amendments--2007. Subsec. (h): Substituted "23" for "22" following "age of".

Amendments--2001 (Adj. Sess.) Subsec. (b): Substituted "state board" for "commissioner" and "16 V.S.A. § 165" for "section 165 of Title 16".

Subsec. (h): Substituted "age of 22" for "age of 21".

Amendments--1997 (Adj. Sess.). Added "independent school" to the section heading; substituted "committed to the custody of the commissioner of corrections" in subsec. (a) and "under the custody of the commissioner" in subsec. (e) for "incarcerated within an institution operated by the department"; in subsec. (b) inserted the phrase beginning "as an independent school" and ending with "Title 16"; deleted "offered within a correctional institution" from the end of subsec. (c); in subsec. (d), substituted "facility and department service center" for "institution"; in subsec. (e), added "Within the limits of funds made available for this specific purpose"; substituted the V.S.A. reference in subsec. (f) for a reference to 16 V.S.A. § 1075(d); and added subsec. (h).

Amendments--1991 (Adj. Sess.). Subsec. (b): Substituted "technical" for "vocational" following "special education and".

Cross References

Cross references. Reduction of term for participation in educational program, see § 811 of this title.

§ 121. Community High School of Vermont Board.

  1. A board is established for the purpose of advising the Director of Corrections Education when serving as the Superintendent of the Community High School of Vermont, the independent school established in section 120 of this title. The Board shall have supervision over policy formation for the Community High School of Vermont, except as otherwise provided, shall recommend school policy to the Director of Corrections Education, may create a structure for local advisory boards as it deems appropriate, and shall perform such other duties as requested from time to time by the Secretary of Education or Commissioner of Corrections.
  2. The Board shall consist of nine members, each appointed by the Governor for a three-year term subject to the advice and consent of the Senate, in such a manner that not more than three terms shall expire annually, as follows:
    1. Six representatives selected to ensure geographic representation throughout the State.
    2. Three members-at-large.
  3. The Board shall appoint a Chair and Vice Chair, each of whom shall serve for one year or until a successor is appointed by the Board.
  4. The Board shall report on its activities annually to the State Board of Education, the Secretary of Human Services, and the Commissioner of Corrections.
  5. The Commissioner shall consult with the Board prior to appointing the Director of Corrections Education.

    Added 2001, No. 149 (Adj. Sess.), § 36, eff. June 27, 2002; amended 2011, No. 88 (Adj. Sess.), § 2, eff. April 25, 2012; 2013, No. 92 (Adj. Sess.), § 279, eff. Feb. 14, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Secretary of Education or Commissioner of Corrections" for "commissioner of education or of corrections".

Amendments--2011 (Adj. Sess.) Amended generally.

Implementation. 2011, No. 88 (Adj. Sess.), § 3 provides: "Notwithstanding the provisions of Sec. 2, 28 V.S.A. § 121(b)(1), the current members of the board shall serve until the expiration of their respective terms."

§ 122. Contracting for programming and services.

For the purpose of securing programming and services for offenders, the Department of Corrections shall publicly advertise or invite three or more bids. The contract for any such programming and services shall be awarded to one of the three lowest responsible bidders, conforming to specification, with consideration being given to the time required for provision of services, the purpose for which it is required, competency and responsibility of bidder, and his or her ability to render satisfactory services; but the Commissioner with the approval of the Secretary of Human Services shall have the right to reject any and all bids and to invite other bids.

Added 2011, No. 41 , § 11a.

ANNOTATIONS

1. Generally.

Inmate's claim for mandamus relief was based on sufficient standing, as he claimed that he was personally harmed by the Department of Corrections' failure to engage in a competitive bidding process in order to provide telephone services to inmate as the lowest reasonable cost. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

Inmate's claim for mandamus relief was sufficiently stated, as he established the elements to show that he had a clear legal right to the relief sought of having the Department of Corrections seek a competitive contract for telephone services to inmates. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

Inmate's allegation that Vermont law required the Department of Corrections (DOC) to use competitive bidding to contract for telephone services and that DOC violated this requirement by using a sole-source contract provided DOC with sufficient notice of the basis of his claim for purposes of surviving a dismissal motion. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

§ 120. Department of Corrections education program; independent school.

CHAPTER 5. PROBATION

History

Pilot porject; Department of Corrections; report to Court; probation conditions. 2021, No. 14 , § 2, effective April 29, 2021 provides: "(a) The Department of Corrections, in consultation with the Court Administrator, the Department of State's Attorneys and Sheriffs, the Office of the Attorney General, and the Office of the Defender General, shall establish a pilot project to provide the court with a report prior to the sentencing of any defendant to a term of probation for a felony pursuant to 28 V.S.A. § 205. The report shall be designed to assist the court in setting probation conditions and shall include the defendant's risk and needs assessment results, mental health and substance use disorder screening results, and criminal history.

"(b) The Department, the Court Administrator, the Department of State's Attorneys and Sheriffs, the Office of the Attorney General, and the Office of the Defender General shall jointly select one or two units in the Criminal Division for participation in the pilot project established by this section. On or before December 1, 2022, the Department shall report the results of the pilot project to the Joint Legislative Justice Oversight Committee. The report shall recommend whether the pilot project should be made permanent throughout the State."

Cross References

Cross references. Applicability of Rules of Evidence, see Rule 1101, Vermont Rules of Evidence.

Supervised community sentences, see § 351 et seq. of this title.

ANNOTATIONS

Analysis

1. Deferred sentence.

This chapter, normally used for post-sentence probation, applies equally to probation imposed as part of deferred sentence. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

2. Terms and conditions.

Probationer should be clearly informed of terms and conditions of her probation. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

3. Duration of probation.

General reference to further order of court in defendant's deferred-sentence agreement did not authorize court to extend duration of her probation despite very specific durational limit in the agreement and in court's order. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

Subchapter 1. General Provisions

§ 201. Definitions.

Whenever used in this chapter, unless a different meaning plainly is required, "probation" means a procedure under which a respondent, found guilty of a crime upon verdict or plea, is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner.

Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Analysis

1. Restitution.

On its face, the restitution statute simply is not applicable to situations where no crime has occurred. It is universally acknowledged that a probation revocation proceeding is not essentially "criminal" in nature, and other courts have made a similar distinction between a probation violation and the underlying crime; it follows, therefore, that a probation violation is not a separate crime sufficient to independently trigger the restitution statute. State v. Bohannon, 187 Vt. 410, 996 A.2d 196 (2010).

Expenses for which restitution was being sought were not the direct result of the crime for which defendant was convicted and sentenced; instead, the expenses associated with extradition were directly related to the separate probation violation of leaving the state of Vermont without permission or notice to defendant's parole officer and taking up residence in the state of Washington. Thus, they could not be made the subject of a restitution order. State v. Bohannon, 187 Vt. 410, 996 A.2d 196 (2010).

2. Effect of violation.

There is an obvious connection between a suspended sentence imposed for an underlying crime and the reimposed sentence following a defendant's violation of probation conditions. The reinstatement of an original sentence following a probation violation, however, does not transform a probation violation and an underlying criminal offense into the same act. State v. Bohannon, 187 Vt. 410, 996 A.2d 196 (2010).

Cited. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895 (1979); State v. St. Francis, 160 Vt. 352, 628 A.2d 556 (1993); State v. Benjamin, 182 Vt. 54, 929 A.2d 1276 (June 22, 2007).

§ 202. Powers and responsibilities of the Commissioner regarding probation.

The Commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

  1. To maintain general supervision of persons placed on probation, and to prescribe rules, consistent with any orders of the court, governing the conduct of such persons.
  2. To supervise the administration of probation services and establish policies and standards and make rules regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers.
  3. To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation. Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2007, No. 179 (Adj. Sess.), § 3.

History

2008. In subdiv. (1), deleted "and regulations" to conform to V.S.A. style.

Amendments--2007 (Adj. Sess.). Subdiv. (2): Deleted "and regulations" following "rules", and made minor changes in punctuation.

Subdiv. (3): Added.

Prior law. 28 V.S.A. § 1201.

Cross References

Cross references. Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

ANNOTATIONS

Cited. State v. Powers, 173 Vt. 550, 789 A.2d 962 (2001).

§ 203. Probation warrant.

  1. Whenever a probationer is placed in the custody of the Commissioner, the court shall furnish the Commissioner with a warrant setting forth the name of the probationer, the nature of the crime of which he or she was convicted, the date and place of trial and sentence, the sentence imposed, the order of the court committing him or her to the charge of the Commissioner, and the conditions of his or her release.
  2. The warrant shall be full authority for the exercise by the Commissioner of all the rights and powers over and in relation to the probationer prescribed by law and by the order of the court.
  3. The warrant shall be sufficient authority for the apprehension and detention of the probationer by the Commissioner or by any officer acting under his or her direction at any time or place.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1212(a).

ANNOTATIONS

Cited. State v. Therrien, 140 Vt. 625, 442 A.2d 1299 (1982); State v. St. Francis, 160 Vt. 352, 628 A.2d 556 (1993); State v. Wargo, 168 Vt. 231, 719 A.2d 407 (1998).

§ 204. Submission of written report; protection of records.

  1. A court, before which a person is being prosecuted for any crime, may in its discretion order the Commissioner to submit a written report as to the circumstances of the alleged offense and the character and previous criminal history record of the person, with recommendation. If the presentence investigation report is being prepared in connection with a person's conviction for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3, the Commissioner shall obtain information pertaining to the person's juvenile record, if any, in accordance with 33 V.S.A. §§ 5117 and 5119(f)(6), and any deferred sentences received for a registrable sex offense in accordance with 13 V.S.A. § 7041(h) , and include such information in the presentence investigation report.
  2. The court shall order such a report to be made before imposing sentence when the respondent is adjudged guilty of a felony, except as otherwise provided by rules of the Supreme Court. If the report has been made to any court within the State within a period of two years with reference to such individual, in connection with the same or another offense, submission of a copy of that report may fulfill the requirements of this section, if the court to which the report is to be submitted approves.  Upon request, the Commissioner shall furnish a State's Attorney with a copy of any report made within the State once sentence has been passed in connection with the offense for which the report was made.
  3. The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three-week limit may be extended by order of the court.
    1. Except as provided in subdivision (2) of this subsection, any presentence investigation report or parole summary prepared by any employee of the Department in the discharge of the employee's official duty, except as provided in subdivision 204a(b)(5) and section 205 of this title, is confidential and shall not be disclosed to anyone outside the Department other than the judge or the Parole Board. (d) (1)  Except as provided in subdivision (2) of this subsection, any presentence investigation report or parole summary prepared by any employee of the Department in the discharge of the employee's official duty, except as provided in subdivision 204a(b)(5) and section 205 of this title, is confidential and shall not be disclosed to anyone outside the Department other than the judge or the Parole Board.
      1. The court or Board shall permit inspection of the presentence investigation report or parole summary, redacted of information that may compromise the safety or confidentiality of any person, by the State's Attorney and by the defendant or inmate or his or her attorney; and (2) (A) The court or Board shall permit inspection of the presentence investigation report or parole summary, redacted of information that may compromise the safety or confidentiality of any person, by the State's Attorney and by the defendant or inmate or his or her attorney; and
      2. the court or Board may, in its discretion, permit the inspection of the presentence investigation report or parole summary or parts thereof by other persons having a proper interest in the report or parole summary, whenever the best interests or welfare of the defendant or inmate makes that action desirable or helpful.
  4. The presentence investigation report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim's guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim's guardian or next of kin choose to submit comments or a written statement.
  5. Except as otherwise provided by law, reports and records subject to this section may be inspected, pursuant to a court order issued ex parte, by a State or federal prosecutor as part of a criminal investigation if the court finds that the records may be relevant to the investigation. The information in the files may be used for any lawful purpose but shall not otherwise be made public.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 109 , § 10, eff. May 25, 1973; 1981, No. 223 (Adj. Sess.), § 18; 1989, No. 293 (Adj. Sess.), § 7; 1995, No. 170 (Adj. Sess.), § 18, eff. Sept. 1, 1996; 2005, No. 192 (Adj. Sess.), § 11, eff. May 26, 2006; 2009, No. 1 , § 35; 2009, No. 58 , § 19; 2013, No. 168 (Adj. Sess.), § 3, eff. June 3, 2014; 2015, No. 29 , § 21; 2015, No. 137 (Adj. Sess.), § 3, eff. May 25, 2016; 2017, No. 113 (Adj. Sess.), § 169.

History

Amendments--2017 (Adj. Sess.) Subdiv. (d)(2)(B): Substituted "in the report or parole summary" for "therein" following "proper interest" and "interests" for "interest" preceding "or welfare of".

Amendments--2015 (Adj. Sess.). Subsecs. (a), (e): Inserted "investigation" following "presentence" wherever it appears.

Subdivs. (d)(1), (d)(2): Amended generally.

Amendments--2015. Subsec. (d): Substituted "confidential" for "privileged" preceding "and shall not be disclosed" in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (d): Added the second sentence.

Amendments--2009. Subsec. (a): Act No. 1 inserted "criminal history" preceding "record" and added the second sentence.

Subsec. (d): Act Nos. 1 and 58 inserted "subdivision 204a(b)(5) and" preceding "section 205".

Subsec. (f): Added by Act No. 58.

Amendments--2005 (Adj. Sess.). Subsec. (c): Inserted "or section 204a of this title" following "section".

Subsec. (e): Inserted "ordered by the court under this section or section 204a of this title" following "report".

Subsec. (f): Deleted.

Amendments--1995 (Adj. Sess.) Subsec. (d): Inserted "except as provided in section 205 of this title" following "official duty" and made minor changes in phraseology.

Amendments--1989 (Adj. Sess.). Subsec. (f): Added.

Amendments--1981 (Adj. Sess.). Subsec. (e): Added.

Amendments--1973. Subsec. (b): Rewrote the first sentence.

Prior law. 28 V.S.A. §§ 1003, 1208.

Cross References

Cross references. Sentencing information, see Rule 32(c), Vermont Rules of Criminal Procedure.

ANNOTATIONS

Analysis

1. Time limit.

Probation officers should comply with subsection (c) of this section, governing the time for filing presentence investigation reports, and seek any extension they require by order of the court. State v. Rathburn, 140 Vt. 382, 442 A.2d 452 (1981).

2. Contents of report.

In sentencing a defendant convicted of dispensing marijuana in a correctional facility, court could properly consider statements by corrections officials in the presentence investigation report as to the problem of drugs in correctional facilities and the possible deterrent effect of defendant's sentence on that problem. State v. Francis, 152 Vt. 628, 568 A.2d 389 (1989).

3. Effect of delay in filing report.

A three-week delay in filing a presentence investigation report was not prejudicial to the defendant, so long as the report on the defendant was furnished to the court before it imposed sentence. State v. Rathburn, 140 Vt. 382, 442 A.2d 452 (1981).

4. Inspection by defendant.

A defendant seeking access to another individual's presentence investigation report (PSI) must support the request with a plausible showing of materiality; upon such a showing, the court should review the PSI in camera and disclose only that information, if any, that is material to guilt or punishment. State v. Bacon, 167 Vt. 88, 702 A.2d 116 (1997).

Defendant did not make a plausible showing that information in other individual's presentence investigation reports (PSIs) was material to his sentencing: He did not claim that the requested PSIs contained information concerning his culpability or aggravating and mitigating factors, but sought only to compare himself with other individuals who had been sentenced to life-without-parole. Even if it was assumed that the PSIs would have shown that these other individuals were more culpable and dangerous than defendant, that information would not have been material to his sentence, as sentencing in Vermont is individualized, with broad discretion afforded the trial court in fashioning an appropriate sentence, which may involve a wide-ranging inquiry into a defendant's life and the nature of the offense committed. State v. Bacon, 167 Vt. 88, 702 A.2d 116 (1997).

Where defendant requested access to the presentence investigation report (PSI) of his accomplice, the court should have reviewed the accomplice's PSI in camera and disclosed any information material to defendant's sentence, such as motives or relative responsibility for the crime. State v. Bacon, 167 Vt. 88, 702 A.2d 116 (1997).

Policy of this section and V.R.Cr.P. 32 is that presentence investigation reports be available for inspection, in trial court's discretion, when availability is in the best interests of defendant. In re Sevene, 136 Vt. 602, 396 A.2d 1390 (1979).

Failure to produce presentence investigation report at request of person who had pled guilty to statutory rape and been sentenced, and who, in petition for review of sentence, stated that he was functionally illiterate and that his presentence report was not read to him until weeks after sentence, was not sound exercise of court's discretion to make report available, and dismissal of petition had to be vacated where court had not considered the report, yet found that petitioner failed to substantiate claim that inaccuracies in it were grounds for vacating plea and sentence. In re Sevene, 136 Vt. 602, 396 A.2d 1390 (1979).

5. Public access.

The qualified First Amendment right of access that attaches to documents submitted by parties in sentencing hearings does not extend to presentence investigation reports (PSI) prepared at the request of, and for the benefit of, the sentencing court, which are protected by 28 V.S.A. § 204(d) and have historically not been open to the press and public. This conclusion is not affected by the fact that some information contained in a PSI may become public during the sentencing process, as the documents themselves have been, and continue to be, treated as confidential. Much information contained in PSIs, including that provided by defendants themselves, remains private. State v. LaBounty, 167 Vt. 25, 702 A.2d 82 (1997).

6. Rights of victims.

Subsection (e) of this section, granting an absolute right to a victim to submit comments or a written statement for inclusion in the presentence report, does not imply the prohibition of any other manner of victim participation in sentencing. In re Meunier, 145 Vt. 414, 491 A.2d 1019 (1985).

7. Testimony by victims.

Age-related impairment in a person's ability to, for example, manage his or her own finances does not foreclose the possibility that the person may still be capable of expressing himself or herself regarding a matter upon which he or she is called to testify. Thus, a person may be found to be a "vulnerable adult" and the victim of a charge of exploiting a vulnerable adult, but still be competent to testify according to the Vermont Rules of Evidence and for the purposes of sentencing consideration. State v. Davis, 207 Vt. 346, 186 A.3d 1088 (Mar. 23, 2018).

Cited. Doe v. Salmon, 135 Vt. 443, 378 A.2d 512 (1977); State v. Chambers, 144 Vt. 377, 477 A.2d 974 (1984); State v. Grenier, 158 Vt. 153, 605 A.2d 853 (1992).

Annotations From Former § 1208

1. Time limit.

Provision of this section governing time for filing presentence investigation report did not create rights of a substantive nature. In re Shuttle, 131 Vt. 457, 306 A.2d 667 (1973).

That presentence investigation report required by this section to be filed within one to three weeks of date it was ordered was not filed for thirty-eight days was not grounds for dismissal of the case where respondent did not show prejudice to his rights. In re Shuttle, 131 Vt. 457, 306 A.2d 667 (1973).

2. Remand.

Remand of case from county court to municipal court so that written presentence investigation could be put into proceedings in place of oral report actually made, in order to comply literally with language of this section, was not unauthorized or illegal. State v. Morse, 126 Vt. 314, 229 A.2d 232 (1967).

§ 204a. Sex offenders; presentence investigations; risk assessments; psychosexual evaluations.

  1. The Department of Corrections shall conduct a presentence investigation for all persons convicted of:
    1. lewd and lascivious conduct in violation of 13 V.S.A. § 2601 ;
    2. lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602 ;
    3. sexual assault in violation of 13 V.S.A. § 3252 ;
    4. aggravated sexual assault in violation of 13 V.S.A. § 3253 ;
    5. aggravated sexual assault of a child in violation of 13 V.S.A. § 3253 a ;
    6. kidnapping with intent to commit sexual assault in violation of 13 V.S.A. § 2405(a)(1)(D) ; or
    7. an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
  2. A presentence investigation required by this section:
    1. Shall include an assessment of the offender's risk of reoffense and a determination of whether the person is a high-risk offender.
    2. Shall include a psychosexual evaluation if so ordered by the court.
    3. Shall include information regarding the offender's records maintained by the Department for Children and Families in the Child Protection Registry pursuant to 33 V.S.A. § 4916 if the offender was previously substantiated for child abuse or neglect.
    4. Shall include information, if any, regarding any deferred sentences received by the offender for a registrable sex offense in accordance with 13 V.S.A. § 7041(h) .
    5. Shall be completed before the defendant is sentenced. Upon completion, the Department shall submit copies of the presentence investigation to the court, the State's Attorney, the defendant's attorney, and the Department for Children and Families.  Copies of a presentence investigation authorized by this subdivision shall remain privileged and are not subject to public inspection.
    1. The Department of Corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section. The Department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender. (c) (1)  The Department of Corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section. The Department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.
    2. The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs, and shall include a statement of the relevant policies of the Department of Corrections regarding parole recommendations for the offense of which the offender was convicted.
      1. The court may order the Department to provide a report including: (3) (A) The court may order the Department to provide a report including:
        1. the minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and
        2. the results of a preassessment of the offender.
      2. A preassessment under this subdivision shall consist of:
        1. an interview with the defendant;
        2. an assessment of the offender's risk level;
        3. completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;
        4. identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.
        1. Except as provided in subdivision (ii) of this subdivision (C), the Department shall provide a report to the court under this subdivision within 60 days after it is ordered. (C) (i) Except as provided in subdivision (ii) of this subdivision (C), the Department shall provide a report to the court under this subdivision within 60 days after it is ordered.
        2. If the Department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the Department shall complete the evaluation and provide it to the court along with its report within 90 days after the report is ordered.
  3. The requirement that a presentence investigation be performed pursuant to subsection (a) of this section shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.
  4. Nothing in this section shall be construed to infringe in any manner upon the Department's authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program.

    Added 2005, No. 192 (Adj. Sess.), § 12, eff. May 26, 2006; 2009, No. 1 , § 36.

History

2008. In subdivs. (a)(1)-(5), substituted "of Title 13" for "of this title" for purposes of clarity and to correct an error in the references.

Amendments--2009. Section heading: Substituted "sex" for "sexual" preceding "offenders" and "presentence" for "pre-sentence" preceding "investigations".

Subsec. (a): Added subdivs. (5) and (6) and redesignated former subdiv. (5) as subdiv. (7).

Subsecs. (b) and (d): Amended generally.

§ 204b. High-risk sex offenders.

A person who is sentenced to an incarcerative sentence for a violation of any of the offenses listed in subsection 204a(a) of this title and who is designated by the Department of Corrections as high-risk pursuant to 13 V.S.A. § 5411b while serving his or her sentence shall not be eligible for parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence.

Added 2009, No. 1 , § 44.

ANNOTATIONS

Analysis

1. Constitutionality.

With regard to defendant's Ex Post Facto Clause claim, designating defendant "high risk" was for the sole purpose of increasing public access to his status as a sex offender and related information. Although the trial court held that the statute prohibiting early release until 70 percent of the defendant's maximum sentence was completed violated the Ex Post Facto Clause, that statute had no legal effect on the length of defendant's incarceration. Defendant could point to no statute or administrative directive that retroactively removed or limited the Vermont Department of Corrections' discretion over his treatment programming and that consequently resulted in a longer period of incarceration. Chandler v. Pallito, 203 Vt. 482, 158 A.3d 296 (Sept. 23, 2016).

Court does not find the 70 percent rule, in cases where it applies, to constitute a usurpation of judicial power. State v. Goewey, 201 Vt. 37, 135 A.3d 1220 (2015).

2. Applicability.

Seventy percent rule does not apply in cases where the length of the maximum sentence is imprisonment for life, because 70 percent of that time is not capable of determination. State v. Goewey, 201 Vt. 37, 135 A.3d 1220 (2015).

In creating the 70 percent rule, the Legislature obviously intended it to apply to fixed-period maximum sentences, that is, those which are measured by a term of years. State v. Goewey, 201 Vt. 37, 135 A.3d 1220 (2015).

§ 205. Probation.

    1. After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the Commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court. (a) (1)  After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the Commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.
    2. The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
      1. The term of probation for nonviolent felonies shall not exceed four years or the statutory maximum term of imprisonment for the offense, whichever is less, unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation. (3) (A) The term of probation for nonviolent felonies shall not exceed four years or the statutory maximum term of imprisonment for the offense, whichever is less, unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.
      2. As used in this subdivision, "nonviolent felonies" means an offense that is not:
        1. a listed crime as defined in 13 V.S.A. § 5301(7) ; or
        2. an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
    3. Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.
    4. The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation. A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.
  1. The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request and receive from the Department of Corrections information regarding the offender's general compliance with the specific conditions of probation. Nothing in this section shall require the Department of Corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.
    1. Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer: (c) (1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer:
      1. register with the Department of Corrections' probation and parole office in his or her district;
      2. notify the probation officer of his or her current address each month;
      3. within 72 hours, notify the Department of Corrections if probable cause is found for a criminal offense during the term of probation; and
      4. not be convicted of a criminal offense during the term of probation.
    2. As used in this subsection, "qualifying offense" means:
      1. Unlawful mischief under 13 V.S.A. § 3701 .
      2. Retail theft under 13 V.S.A. §§ 2575 and 2577.
      3. Operating after suspension or revocation of license under 23 V.S.A. § 674(a) .
      4. Bad checks under 13 V.S.A. § 2022 .
      5. Theft of services under 13 V.S.A. § 2582 .
      6. Disorderly conduct under 13 V.S.A. § 1026 , unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7) .
      7. Theft of rented property under 13 V.S.A. § 2591 .
      8. Operation without consent of owner under 23 V.S.A. § 1094(a) .
      9. Petit larceny under 13 V.S.A. § 2502 .
      10. Negligent operation of a motor vehicle under 23 V.S.A. § 1091(a) .
      11. False reports to law enforcement under 13 V.S.A. § 1754 .
      12. Setting fires under 13 V.S.A. § 508 .
      13. [Repealed.]
      14. Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7) .
      15. Unlawful trespass under 13 V.S.A. § 3705(a) .
      16. A first offense of possession under 18 V.S.A. § 4230(a)(1) .
    3. Nothing in this subsection shall prohibit a court from requiring participation in the Restorative Justice Program established in chapter 12 of this title.

      Added 1971, No. 199 (Adj. Sess.), § 20; amended 1995, No. 170 (Adj. Sess.), § 19, eff. Sept. 1, 1996; 1999, No. 4 , § 4; 2003, No. 145 (Adj. Sess.), § 1, eff. June 3, 2004; 2005, No. 192 (Adj. Sess.), § 18, eff. May 26, 2006; 2007, No. 179 (Adj. Sess.), § 4; 2009, No. 146 (Adj. Sess.), § D5; 2015, No. 147 (Adj. Sess.), § 9, eff. May 31, 2016.

History

2008. In subdiv. (a)(3)(B)(ii), substituted "chapter 64 of Title 13" for "chapter 6 of Title 13" to correct an error in the reference.

Amendments--2015 (Adj. Sess.). Subdiv. (c)(2)(M): Repealed.

Amendments--2009 (Adj. Sess.) Subdiv. (a)(3)(A): Inserted "four years or" and "whichever is less".

Amendments--2007 (Adj. Sess.). Subsec. (c): Added.

Amendments--2005 (Adj. Sess.). Subsec. (a): Added the subdiv. designations and subdiv. (3).

Amendments--2003 (Adj. Sess.). Subsec. (a): Added the second through fifth sentences.

Amendments--1999. Subsec. (b): Substituted "13 V.S.A. § 5301(7)" for "section 13 of Title 13".

Amendments--1995 (Adj. Sess.) Designated the existing text of the section as subsec. (a) and added subsec. (b).

Applicability of 2003 (Adj. Sess.) amendment to sentences. 2003, No. 145 (Adj. Sess.), § 5 provides that Sec. 1 of that act [which amends subsec. (a) of this section] shall apply to sentences passed after June 30, 2004.

Prior law. 28 V.S.A. § 1208.

Cross References

Cross references. Conditions of probation, see § 252 of this title.

Deferred sentence, see § 7041 of Title 13.

Stay of probation order pending appeal, see Rule 38(d), Vermont Rules of Criminal Procedure.

ANNOTATIONS

Analysis

1. Construction.

The language of 28 V.S.A. § 304(a), when read together with subsection (a) of this section, did not impliedly give the option to the sentencing court to suspend part of the underlying sentence upon finding a violation of parole. State v. Pratt, 173 Vt. 562, 795 A.2d 1148 (mem.) (2002).

The phrase "in accordance with law," as used in this section, was intended to bind sentencing courts to comply with section 252 of this title, governing conditions of probation, not to limit the period of probation which a court may impose. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895 (1979).

2. Consecutive sentences.

Consecutive sentences are to be aggregated before partial or total suspension of any of the sentences is taken into account; after the sentences are aggregated, the fact that some of the sentences may be partially or completely suspended is considered to compute the manner in which a defendant will serve the aggregated sentences. St. Gelais v. Walton, 150 Vt. 245, 552 A.2d 782 (1988).

3. Length.

Appellate court found it was the best interpretation of the interface between U.S. Sentencing Guidelines Manual § 4A1.2(c)(1)(A) and 28 V.S.A. § 205 that the duration of an indefinite sentence of probation for purposes of Guidelines § 4A1.2(c)(1)(A) was the duration of the period for which the sentencing court continued the probation in effect. Under this view, an indefinite term of probation was a term of probation of at least one year if the sentencing court continued the probation for at least one year. United States v. Tomasi, 313 F.3d 653 (2d Cir. 2002).

When read as consistent with order from bench, court's written order imposed an indeterminate probation period from which defendant was not to be discharged "until further order of court"; in this form, probation condition was explicitly authorized by subsection (a) of this section. State v. Lloyd, 169 Vt. 643, 740 A.2d 364 (mem.) (1999).

If no period is specified, probation may last longer than a defendant's original sentence. State v. Bensh, 168 Vt. 607, 719 A.2d 1155 (mem.) (1998).

Parole board's decision to place defendant on parole had no effect on his sentence, and defendant's completion of parole had no bearing on his status as a probationer because he had not yet been released from probation; defendant therefore remained bound by probation agreement, and his probation was properly revoked for violation of its terms. State v. Bensh, 168 Vt. 607, 719 A.2d 1155 (mem.) (1998).

Prisoner who could have been imprisoned for up to one year would not, upon being imprisoned for breach of probation conditions, be released on the ground that he could not validly be placed on probation for a period exceeding the maximum possible prison term. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895 (1979).

4. Discharge.

In cases where the period of probation is prescribed by the sentencing court, discharge from probation is automatic upon the expiration of the period. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

5. Termination of prescribed period.

Court did not have jurisdiction to act on defendant's failure to live up to conditions of his probation where defendant's prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

Cited. State v. Benoit, 131 Vt. 631, 313 A.2d 387 (1973); Miner v. Chater, 137 Vt. 330, 403 A.2d 274 (1979); In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983); State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992); State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993).

Annotations From Former § 1208

1. Constitutionality.

Provision of this section which authorized court to suspend all or part of a sentence imposed and place the respondent in the care and custody of the state probation officer did not infringe upon the exclusive prerogative of the governor to issue pardons or conditional paroles, as provided in section 20 of chapter II of the Vermont Constitution. In re Hall, 100 Vt. 197, 136 A. 24 (1927).

2. Nature of probation.

Where court imposing sentence on person convicted of crime placed prisoner upon probation for definite time and committed him to custody of state probation officer, commitment to probation officer was not penal in character and could not be counted as time of undergoing punishment. In re Hall, 100 Vt. 197, 136 A. 24 (1927).

3. Revocation of suspension.

Court imposing sentence had jurisdiction to revoke suspension of such sentence upon proper cause being found. In re Hall, 100 Vt. 197, 136 A. 24 (1927).

Cited. State v. Gardner, 169 Vt. 566, 733 A.2d 732 (mem.) (1999).

§ 206. Expenses of probationer.

When a person is placed on probation, the Commissioner may expend such sums as deemed necessary for the temporary support of the person, his or her traveling expenses, or other purposes consistent with the policies of the Department regarding probationers.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1213.

§ 207. Final judgment.

Notwithstanding the fact that a sentence to probation can subsequently be modified or revoked in accordance with subchapters 2 and 3 of this chapter, a judgment that includes such a sentence shall constitute a final judgment for all other purposes.

Added 1971, No. 199 (Adj. Sess.), § 20.

Subchapter 2. Conditions of Probation; Modifications; Discharge

History

Law review commentaries

Law review. For note, "Home Confinement as a Condition of Probation: A Proposal for Vermont," see 12 Vt. L. Rev. 123 (1987).

§ 251. Duration of probation.

The court placing a person on probation may terminate the period of probation and discharge the person at any time if such termination is warranted by the conduct of the offender and the ends of justice.

Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Analysis

1. Application.

This section applies in cases where early discharge of the probationer is deemed appropriate, not where the period of probation is fixed in length. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

2. Consecutive sentence.

When a prisoner on probation is convicted of a subsequent offense, criterion imposed by section 7032 of Title 13, governing imposition of consecutive sentences, that a subsequent conviction must occur before the defendant has been discharged from a prior sentence, must be read with reference to this section and section 255 of this title, governing discharge from probation; together, they permit a subsequent court, in its discretion, to impose a sentence consecutive to probation. In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983).

3. Extension of probation.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant's probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

4. Length of sentence.

If no period is specified, probation may last longer than a defendant's original sentence. State v. Bensh, 168 Vt. 607, 719 A.2d 1155 (mem.) (1998).

Parole board's decision to place defendant on parole had no effect on his sentence, and defendant's completion of parole had no bearing on his status as a probationer because he had not yet been released from probation; defendant therefore remained bound by probation agreement, and his probation was properly revoked for violation of its terms. State v. Bensh, 168 Vt. 607, 719 A.2d 1155 (mem.) (1998).

5. Hearing.

Probationer is entitled to a hearing on disputed material facts before the trial court can order a less-than-satisfactory discharge from probation. State v. Nolen, 193 Vt. 116, 71 A.3d 1213 (2012).

Actions by the trial court affecting defendant's probationary status and freedom, such as a revocation of probation, require a hearing on the merits. Attaching the label of "unsatisfactory" to a defendant's discharge from probation constitutes a legally adverse action by the trial court which requires the State to prove unsatisfactory performance and entitles the defendant to respond to the State's allegations. State v. Nolen, 193 Vt. 116, 71 A.3d 1213 (2012).

6. Unsatisfactory discharge.

Absent a stipulation between the parties, the trial court abused its discretion by issuing an adverse order of unsatisfactory discharge with neither findings on the underlying basis for its determination nor an opportunity for defendant to be heard on the facts in dispute. State v. Nolen, 193 Vt. 116, 71 A.3d 1213 (2012).

Although the trial court erred in ordering without a hearing that defendant receive an unsatisfactory discharge from probation, the court declined to order a satisfactory discharge from probation. Whether defendant was entitled to a satisfactory discharge, and on what grounds, could be considered by the trial court on remand. State v. Nolen, 193 Vt. 116, 71 A.3d 1213 (2012).

7. Early termination.

Trial court properly held that it lacked the authority to terminate defendant's probation obligations and expunge his criminal convictions halfway through his stipulated deferred-sentence term, as the term of deferment could not be shortened without the State's consent, and allowing defendant to escape the agreement's burden after he had benefited from it would not advance the ends of justice. State v. Love, 205 Vt. 222, 172 A.3d 777 (July 21, 2017).

Cited. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895 (1979); State v. Allen, 145 Vt. 393, 488 A.2d 775 (1985); State v. Whitchurch, 155 Vt. 134, 577 A.2d 690 (1990); State v. Lloyd, 169 Vt. 643, 740 A.2d 364 (mem.) (1999); United States v. Tomasi, 313 F.3d 653 (2d Cir. 2002).

§ 252. Conditions of probation.

  1. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so. The court shall provide as an explicit condition of every sentence to probation that if the offender is convicted of another offense during the period for which the sentence remains subject to revocation, then the court may impose revocation of the offender's probation.
  2. When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:
    1. Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the offender for suitable employment.
    2. Work faithfully for a prescribed number of hours at community service activity acceptable to the court, or if so ordered by the court, acceptable to a probation officer.
    3. Undergo available medical or psychiatric treatment and remain at a specified institution if required for that purpose.
    4. Attend or reside at a facility established for the instruction, recreation, or residence of persons on probation.
    5. Support the offender's dependents and meet other family responsibilities.
    6. Make restitution or reparation to the victim of his or her conduct, or to the Victims' Compensation Fund to the extent it has made payment to or on behalf of the victim in accordance with 13 V.S.A. chapter 167, for the damage or injury which was sustained. When restitution or reparation is a condition of the sentence, the court, in accordance with 13 V.S.A. § 7043 , shall fix the amount thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance.
    7. Pay a fine authorized in accordance with law.
    8. Refrain from purchasing or possessing a firearm or ammunition therefor, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer.
    9. Report to a probation officer at reasonable times as directed by the court or the probation officer.
    10. Permit the probation officer to visit the offender at reasonable times at his or her home or elsewhere.
    11. Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
    12. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
    13. Not in any way harass the victim or the family of the victim.
    14. Not contact the victim, unless this condition is specifically waived by the victim.
    15. Participate in the Restorative Justice Program conducted by a community reparative board, pursuant to chapter 12 of this title. The court may direct a reparative board to assist in determining restitution to the victim, as provided by subdivision (6) of this subsection.
    16. Submit to periodic polygraph testing if the offender is being placed on probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.
    17. If the probation officer has reasonable grounds to believe the offender has violated a probation condition, permit a probation officer or designee to monitor or examine the offender's activities, communications, and use of any computer or other digital or electronic media, including cell phone, smartphone, digital camera, digital video camera, digital music player or recorder, digital video player or recorder, personal digital assistant, portable electronic storage device, gaming system, or any other contemporary device capable of the storage of digital electronic communication or data storage or access to the Internet or other computer or digital network.
    18. Satisfy any other conditions reasonably related to his or her rehabilitation. Such conditions may include prohibiting the use of alcohol, prohibiting having contact with minors, prohibiting or limiting the use of a computer or other electronic devices, and permitting a probation officer access to all computers or other digital or electronic media, mail covers, subscription services, and credit card statements. The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender's rehabilitation or necessary to reduce risk to public safety.
  3. When an offender is placed on probation, he or she shall be given a certificate explicitly setting forth the conditions upon which he or she is being released.
  4. The Commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer's specified term and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program or has attained a goal or goals specified by the conditions of probation. The Commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made pursuant to a rule adopted by the Commissioner under 3 V.S.A. chapter 25 that shall provide that the decision to make or refrain from making a motion shall be made at the sole discretion of the Commissioner and shall not be subject to appeal.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1983, No. 229 (Adj. Sess.), § 5; 1993, No. 169 (Adj. Sess.), § 3, June 3, 1994; 1995, No. 170 (Adj. Sess.), § 20, eff. Sept. 1, 1996; 1999, No. 148 (Adj. Sess.), § 66, eff. May 24, 2000; 2001, No. 134 (Adj. Sess.), § 5; 2007, No. 179 (Adj. Sess.), § 5; 2009, No. 1 , § 39.

History

Amendments--2009. Subsec. (b): Added new subdivs. (16) and (17), redesignated former subdiv. (16) as subdiv. (18), and added the second sentence in that subdiv.

Amendments--2007 (Adj. Sess.). Subdiv. (b)(16): Added the second sentence.

Subsec. (d): Added.

Amendments--2001 (Adj. Sess.) Subdiv. (b)(6): Inserted "or her" in the first sentence, and "in accordance with section 7043 of Title 13" in the second sentence.

Amendments--1999 (Adj. Sess.). Subsec. (b): Added new subdiv. (15) and redesignated former subdiv. (15) as present subdiv. (16).

Amendments--1995 (Adj. Sess.) Added present subdivs. (13) and (14) and redesignated former subdiv. (13) as subdiv. (15).

Amendments--1993 (Adj. Sess.). Subdiv. (b)(6): Inserted "or to the victims' compensation fund to the extent it has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13" following "conduct" in the first sentence.

Amendments--1983 (Adj. Sess.). Subsec. (b): Added a new subdiv. (2) and redesignated former subdivs. (2)-(12) as (3)-(13).

Prior law. 28 V.S.A. § 1214.

Cross References

Cross references. Hearing on modification of probation, see Rule 32.1(b), Vermont Rules of Criminal Procedure.

Requirement of restitution generally, see § 7043 of Title 13.

ANNOTATIONS

Analysis

1. Generally.

The Legislature placed the power to impose probation conditions on the court, and not on the corrections department and its employees; similarly, the power to modify probation conditions also rests exclusively with the courts. State v. Rivers, 178 Vt. 180, 878 A.2d 1070 (June 10, 2005).

A probation condition is valid if the conduct it requires is not itself criminal and is reasonably related to the crime of which the defendant was convicted. State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988).

Probation conditions are statutorily authorized and constitutionally permissible if they are reasonably related to the crime for which defendant was convicted and to the purposes of sentencing, including the goal of rehabilitation, and if they are not unduly restrictive of the probationer's liberty or autonomy. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690 (1990).

Due process requires that a defendant receive fair notice as to what acts may constitute a violation of his probation; in addition to the statutorily mandated certificate setting forth the conditions of release, the instructions and directions given by the probation officer can serve to provide fair notice. State v. Gleason, 154 Vt. 205, 576 A.2d 1246 (1990).

2. Nature and purpose.

Although the probation conditions imposed might be "standard" in the sense that they appeared in an internal judiciary probation order template, as well as a standard plea agreement form generated by the Court Administrator, the inclusion of these particular conditions on a form labeled "standard conditions" did not reflect a judicial determination that every condition included was presumptively valid, or that the whole package of conditions could be applied in every case; nor did this reflect a judicial determination that all of the conditions were constitutional and valid on their face and provided adequate notice of what conduct might lead to a revocation of probation. The only truly "standard" condition was the one providing that the court could revoke probation if the offender was convicted of another offense while the sentence was still subject to revocation. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

A trial court's decision to suspend criminal sentence and impose conditions of probation, under statute, represents an essential tool in court's ability to shape a criminal sentence to rehabilitative needs of individual defendant. State v. Nelson, 170 Vt. 125, 742 A.2d 1248 (1999).

Purpose of probation is to provide the opportunity for a defendant to voluntarily condition his behavior according to the requirements of the law and test his ability to do so, and as such it is prospective, based on a promise of future conduct. State v. Hale, 137 Vt. 162, 400 A.2d 996 (1979).

3. Compliance.

Compliance with probation terms may not be put beyond the probationer's control. State v. Bubar, 146 Vt. 398, 505 A.2d 1197 (1985).

4. Violation of conditions.

Requirement that a defendant be provided with a certificate explicitly setting forth the conditions upon which he or she is being released on probation is not satisfied by a plea agreement, because the conditions of release are ultimately still set by the court at sentencing, and not by the prosecutor during plea negotiations; the conditions of release thus do not necessarily reflect all the prosecutor seeks. The terms of the plea agreement, therefore, may not be used alone to prove a violation of probation; only a signed probation order may be so used. State v. Hemingway, 196 Vt. 441, 97 A.3d 465 (May 9, 2014).

Retraction of probation, to be consistent with the objectives of its statutory justification, should be reserved for behavior that breaches its conditions after the probationary agreement is entered into, and to arbitrarily withdraw probation without any violative act on the person's part is to reduce the state's performance to something close to capricious, and a departure from the statutory objectives. State v. Hale, 137 Vt. 162, 400 A.2d 996 (1979).

Revocation of probation for an act or failure to act contrary to a condition of probation must be based on an act or failure to act occurring after conditions of probation are agreed to. State v. Hale, 137 Vt. 162, 400 A.2d 996 (1979).

Where defendant on probation under condition that he not be convicted of another offense was convicted of an offense which occurred prior to his being placed on probation for the first offense, he could not be charged with violating the terms of probation and his probation could not be revoked. State v. Hale, 137 Vt. 162, 400 A.2d 996 (1979).

5. Restitution .

In ordering restitution under this section, the court must first determine whether the criminal conduct caused damage and the amount of that damage. State v. Curtis, 140 Vt. 621, 443 A.2d 454 (1982).

*6. Construction with other laws.

Subdivision (b)(6) of this section, which generally allows restitution as a condition of probation, is limited by section 7043 of Title 13, which specifically explains when restitution must be considered and what restitution may include. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005 (1986).

Subdivision (b)(6) of this section, which generally allows restitution as a condition of probation, is limited by section 7043 of Title 13, which specifically explains when restitution must be considered and what restitution may include. State v. Webb, 151 Vt. 200, 559 A.2d 658 (1989).

Probation conditions may impact upon a probationer's First Amendment rights so long as conditions have a reasonable nexus with rehabilitation of defendant and protection of public; court has broad discretion in setting conditions of probation, and may require a probationer to satisfy any conditions reasonably related to his rehabilitation. State v. Lockwood, 160 Vt. 547, 632 A.2d 655 (1993).

*7. Ability to pay.

Where defendant agreed to pay restitution as part of a plea bargain agreement and did not testify at hearing, burden was on the state to prove defendant's ability to pay and defendant's right under subdivision (b)(6) of this section to a determination of his ability to pay was not waived. State v. Sausville, 151 Vt. 120, 557 A.2d 502 (1989).

*8. Amount .

In ordering restitution as a condition of probation under this section the court, in calculating the amount of restitution cannot order restitution to exceed the defendant's ability to pay. State v. Curtis, 140 Vt. 621, 443 A.2d 454 (1982).

In requiring, as a condition of probation, restitution to the victim for the damages sustained, the measure of damages to a motor vehicle is fair market value before the injury less fair market value after the injury. State v. Curtis, 140 Vt. 621, 443 A.2d 454 (1982).

Where operator of motor vehicle was convicted of careless and negligent driving, and the trial court, as a condition of probation, ordered restitution to the owner of an automobile which the defendant had struck and damaged in the course of committing the offense, but there was no credible evidence in the record on appeal to support the court's conclusion as to the amount of restitution order could not stand. State v. Curtis, 140 Vt. 621, 443 A.2d 454 (1982).

9. Manner of performance.

Even though defendant signed an agreement with her probation officer specifying manner in which restitution was to be paid, this section required that the "manner of performance" be set by the court, not the probation department. State v. Guinard, 169 Vt. 555, 726 A.2d 88 (mem.) (1999).

*10. Damages recoverable.

The mere fact that a restitution award for extradition expenses exceeded the maximum fine allowable for escape did not make it improper, because the Legislature did not intend to limit such damages based on the dollar amount in the charge against the defendant. State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998).

The Department of Corrections was the immediate and intended "victim" of defendant's criminal conduct (escape) for purposes of awarding restitution for extradition expenses. State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998).

Only liquidated amounts which are easily ascertained and measured are recoverable as restitution under this section; these amounts include, but are not necessarily limited to, hospital bills, property value, and lost employment income. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005 (1986).

*11. Damages not recoverable.

The trial court did not have the statutory authority to require defendant, convicted of driving under the influence, death resulting, as a condition of probation, to pay restitution for partial support to the deceased victim's dependents. State v. Fontaine, 167 Vt. 529, 711 A.2d 667 (1998).

Damages that are not readily ascertainable, such as pain and suffering, emotional trauma, loss of earning capacity, and wrongful death awards are not proper subjects of restitution. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005 (1986).

Section 7043 of Title 13, governing restitution in sentencing, and subdivision (b)(6) of this section, authorizing restitution as a condition of probation, do not allow restitutory awards for a victim's pain and suffering or emotional trauma. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005 (1986).

*12. Insurers.

Restitution paid to "victim" under this section may not include payments to insurers of persons directly injured by offender's conduct. State v. Webb, 151 Vt. 200, 559 A.2d 658 (1989).

Under provision authorizing payment of restitution as a condition of probation, there is no general exclusion of insurance companies from the category of victim; holding of State v. Webb, 151 Vt. 200, 559 A.2d 658 (1989), proscribed only the payment of restitution to insurance companies as indirect victims, not to insurance companies per se. State v. Bonfanti, 157 Vt. 625, 603 A.2d 365 (1991).

Trial court order that arson defendant make restitution to insurance companies, which paid off defendant's mortgage after fire in defendant's building, was within court's discretion; as such, it would not be disturbed on review. State v. Bonfanti, 157 Vt. 625, 603 A.2d 365 (1991).

*13. Findings.

Where person convicted of welfare fraud is placed on probation with an order of restitution, record must show findings as to whether order is for an amount the convicted person can or will be able to pay and the order must set out the manner of performance. State v. Godfrey, 131 Vt. 629, 313 A.2d 390 (1973); State v. Benoit, 131 Vt. 631, 313 A.2d 387 (1973).

Where operator of motor vehicle was convicted of careless and negligent driving, and the trial court, as a condition of probation, ordered restitution to the owner of an automobile which the defendant had struck and damaged in the course of committing th offense, gut the record was devoid of any finding by the trial court as to the defendant's ability to pay, the restitution order could not stand. State v. Curtis, 140 Vt. 621, 443 A.2d 454 (1982).

*14. Civil damages.

A restitution order in a criminal case is not the same as, and is no substitute for, an award of civil damages. State v. Jarvis, 146 Vt. 636, 509 A.2d 1005 (1986).

15. Particular conditions.

Probation condition that defendant avoid pornography was improper when there was no evidence that pornography was related to his offense, his individual history, or his behaviors or that the condition was generally necessary for the rehabilitation of all sex offenders; the fact that the pornography condition was part of the sex-offender treatment program defendant was otherwise required to complete was not sufficient to support the condition. State v. Bouchard, - Vt. - , 228 A.3d 349 (2020).

Because a probation condition imposed upon defendant, a sex offender, on its face authorized limitless monitoring of his computer and internet use, it was not narrowly tailored to ensure a permissible balance between the government's interests and defendant's privacy rights, and was not reasonably necessary to help defendant lead a law-abiding life. State v. Bouchard, - Vt. - , 228 A.3d 349 (2020).

Probation condition regarding pornography, erotica, and sexual establishments was not supported by the evidence. The record did not show that the crime - sexual assault of an adult - was connected to pornography, erotica, adult bookstores, sex shops, topless bars, or other similar establishments, nor did the State present evidence that defendant's individual history or behaviors supported the condition as part of his rehabilitation or for the protection of the public. State v. Lumumba, 207 Vt. 254, 187 A.3d 353 (Apr. 6, 2018).

Defendant failed to show why a probation condition completely prohibiting his alcohol possession or use was unreasonable under the circumstances. The trial court was concerned about the nature of the offense, a public brawl where defendant committed an aggravated assault while drunk and armed with a knife, and felt total abstinence from alcohol was warranted to aid in defendant's rehabilitation. State v. Urban, 207 Vt. 13, 184 A.3d 731 (Feb. 23, 2018).

Because a condition that defendant not buy, have or use any regulated drugs unless prescribed precluded conduct that was criminal, the trial court was not required to find a reasonable relationship between defendant's conviction and the condition. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Because defendant's conviction was not related to the use of drugs or alcohol and there was no evidence that he abused drugs or alcohol, a condition allowing defendant's probation officer to require him to submit to random urinalysis testing was invalid. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Probation condition stating that defendant was not to drink alcoholic beverages to the extent it interfered with his employment or the welfare of himself or his family, and that he had to submit to an alco sensor test if required by his probation officer was not supported by sufficient evidence of a reasonable relationship between defendant, the crime for which he was convicted, and the condition. Drinking alcohol to excess was not criminal, and there was no evidence that defendant's conduct leading to his conviction was related to alcohol use. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Insofar as defendant was convicted of a crime relating to the operation of a motor vehicle, the court could reasonably conclude that a probation condition specifically requiring that defendant not drive without a license was reasonably related to his rehabilitation. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Probation condition requiring defendant to repay any unpaid amounts due for any legal services provided at state expense solely applied to a court order arising from defendant's prosecution for the crime for which he was convicted and was therefore sufficiently related to his rehabilitation, in light of the crime of which he was convicted. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Probation condition requiring defendant to attend any counseling or training program designated by his probation officer and to participate to the satisfaction of his probation officer was an unlawful delegation of authority, as the probation condition gave the probation officer complete discretion in deciding whether and which counseling or training program defendant would attend, and was unsupported by particularized findings justifying not only the condition requiring counseling or training, but the broad delegation to the probation officer to determine the type of counseling or training. The error was plain, as the delegation deprived defendant of a substantial right and affected the integrity of the judicial process by giving the probation officer authority reserved to the courts. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Probation conditions relating to the supervision of defendant by his probation officer were reasonably related to aiding defendant in leading a law-abiding life in light of the crime for which he was convicted, and were within the trial court's discretion. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

There were no grounds to impose a probation condition requiring defendant to regularly work at a job, look for work, or get job training if required by his probation officer. Defendant was on disability at the time of the hearing, and there was no suggestion in the record that his criminal conduct was connected to his lack of employment or that getting a job, instead of remaining on disability, would help him become more stable or reduce his risk of reoffending; in fact, there was no evidence that defendant was capable of working. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Because the trial court neither ordered community service nor imposed restitution, probation conditions connected to community service and restitution imposed no real requirement on defendant and were inapplicable. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Because there was no evidence that defendant was subject to any court orders concerning support for his family, that he had failed in any way to meet his legal obligations to any family members, or that the conduct leading to his conviction was part of a broader pattern of neglecting his responsibilities, including familial responsibilities, a condition requiring him to support his dependents and meet his family obligations was not reasonably related to defendant and the crime for which he was convicted such that it was a reasonable component of his rehabilitation. State v. Putnam, 200 Vt. 257, 130 A.3d 836 (Sept. 4, 2015).

Condition of defendant's probation that restricted his place of residence was not overbroad or unduly restrictive because it was related to the rehabilitative purpose of keeping defendant near the supervision of his family and his employer. State v. Pettitt, 197 Vt. 403, 104 A.3d 85 (2014).

Where a probation condition proscribed defendant's interaction with all children under the age of sixteen, but made no mention of specific public locations or events where children are often present, by prohibiting defendant from attending a fair, his probation officer converted the probation condition from a contact-based condition to a location-based condition, and in so doing, the officer crossed the line between condition interpretation and modification. State v. Rivers, 178 Vt. 180, 878 A.2d 1070 (June 10, 2005).

By providing for mandatory one-year license suspension for DUI with fatality resulting, and vesting commissioner of motor vehicles with exclusive authority to calculate suspensions and revocations, Legislature did not expressly or impliedly preempt trial court's probationary power to limit a defendant's operating privileges for longer periods; had Legislature actually intended to eliminate trial court's discretion to prohibit a defendant from driving as a condition of probation for grave vehicular offenses, it would have plainly said so. State v. Nelson, 170 Vt. 125, 742 A.2d 1248 (1999).

Where defendant pleaded nolo contendere to simple assault and the information which formed the basis of the charge and the presentence investigation report revealed that the assault was of a sexual nature, probation condition that defendant participate in a sexual offender's counseling group was not an abuse of discretion, since it was reasonably related to the crime and might serve to protect the public against similar misconduct in the future. State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988).

Trial court did not err in refusing to strike as facially over broad or vague probation condition that prohibited probationer convicted of sexual lewdness with daughter from living with his children or contacting them without approval of probation officer. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690 (1990).

Sentencing court exceeded its discretion under subdivision (b)(13) of this section by ordering that probation be subject to the special condition that offender not be in the presence of a female person other than his wife unless another adult person was present. State v. Bubar, 146 Vt. 398, 505 A.2d 1197 (1985).

Probation condition requiring defendant to submit to polygraph examinations was related to the offense for which he was convicted, as this type of non-evidentiary use of a polygraph examination would help ensure that he was on track with both his rehabilitation and sex offender therapy, as well as ensure public safety, all of which related to the goals of probation and compliance investigation. State v. Campbell, 199 Vt. 78, 120 A.3d 1148 (2015).

Trial court did not err in ordering defendant, who was convicted of unlawful trespass after refusing to leave his ex-girlfriend's car, to complete a Domestic Abuse Education Program as a condition of probation even though he was not convicted of a crime of violence. The trial court provided reasonable grounds for its decision in that it found that the crime here had been motivated by power and control issues and that defendant needed to address these issues to prevent similar incidents from recurring. State v. Stokes, 194 Vt. 351, 83 A.3d 567 (2013).

As imposed, a probation condition requiring defendant to seek his probation officer's approval regarding his employment was overbroad and unduly restrictive, as it gave the probation officer the authority to control defendant's place of employment without any guiding standards, subject only to the qualification that approval "shall not be unreasonably withheld," and without any findings of fact explaining why such a broad delegation of authority was necessary. State v. Campbell, 199 Vt. 78, 120 A.3d 1148 (2015).

16. Review.

Defendant had waived his right to collaterally attack a condition of probation by failing to challenge it after conviction. State v. Amidon, 188 Vt. 617, 8 A.3d 1050 (mem.) (2010).

Although not without limitation, a trial court's discretion in imposing conditions of probation is expansive, and will generally be upheld if probation condition is reasonably related to crime for which defendant was convicted. State v. Nelson, 170 Vt. 125, 742 A.2d 1248 (1999).

17. Notice of conditions.

Even if the probation order did not satisfy the requirement that a probationer be given a certificate explicitly setting forth the conditions of probation, there was no plain error, as defendant received a probation order listing all of the conditions, defendant was fully aware of the information that was allegedly not provided, and any error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. State v. Gauthier, 201 Vt. 543, 145 A.3d 833 (2016).

Statute requires only that the probationer receive a probation certificate; nothing in the statute requires a defendant to sign the probation certificate, and to hold that probation does not begin until a defendant signs a probation certificate would give a defendant veto power over when the terms of probation commenced. A signature acknowledging receipt of the probation certificate is one, but not the only, way to establish that a probationer has received the required probation certificate. State v. Anderson, 202 Vt. 1, 146 A.3d 876 (2016).

Trial court's failure to comply with the provision requiring that a probationer receive a certificate explicitly setting forth the conditions upon which he or she is being released makes the probation condition unenforceable. State v. Hemingway, 196 Vt. 441, 97 A.3d 465 (May 9, 2014).

When defendant did not receive a certificate explicitly setting forth his probation conditions, his violation of probation could not stand without the explicit written notice required by law. State v. Hemingway, 196 Vt. 441, 97 A.3d 465 (May 9, 2014).

Cited. Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895 (1979); In re Fadden, 148 Vt. 116, 530 A.2d 560 (1987); Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991); State v. Katon, 168 Vt. 274, 719 A.2d 430 (1998).

Annotations From Former § 1208

1. Discretion of court.

Court should be allowed wide discretion in imposing conditions of probation, but such discretion is not without limitation. State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939).

2. Restitution.

Restitution which respondent could be required to make as a condition of placing him on probation must be for loss sustained as direct consequence of commission of particular crime of which respondent stood convicted. State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939).

Condition imposed by court in probation order that respondent convicted of leaving scene of accident make weekly payments apparently in settlement of claim for damages arising out of the accident was illegal and void as being against public policy. State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939).

§ 252a. Review of probation conditions.

  1. When the court imposes a sentence upon a defendant who has been convicted of an offense enumerated in section 204a of this title that includes a period of incarceration of more than one year to serve to be followed by probation, the court may make the probation contingent on the offender fulfilling specific stated conditions, such as taking part in treatment while incarcerated, and may modify, following a hearing pursuant to subsection (c) of this section, the conditions of probation if a violation has occurred.  The court shall review the probation conditions imposed at the time of sentencing after the incarceration portion of the sentence has been served, and prior to the offender's release to probation. Such review shall include information about the offender developed after the date of sentencing, including information about the offender's incarceration period.
  2. For an offender whose probation is contingent on fulfilling conditions pursuant to subsection (a) of this section, the Department of Corrections shall prepare a prerelease probation report to the court at least 30 days prior to the release based upon information available to the Department.  The prerelease probation report shall include the offender's degree of participation in treatment while incarcerated, whether conditions imposed under subsection (a) of this section were complied with, and other information relevant to the offender's release to the probationary sentence.  The Department of Corrections shall provide a copy of the prerelease probation report to the attorney for the offender and the prosecuting attorney at the same time it provides the report to the court.
  3. If the Commissioner of Corrections believes the offender has violated a condition imposed under subsection (a) of this section, he or she may recommend a change to the original probation order.  In this case, the court shall schedule a modification hearing prior to the release date.  The court may modify the conditions or add further requirements as authorized by section 252 of this title.  The offender shall have a reasonable opportunity to contest the modification prior to its imposition.  The prosecuting attorney shall represent the State in connection with any proceeding held in accordance with this section.

    Added 2009, No. 1 , § 38.

§ 253. Modification of conditions; revocations.

  1. During the period of probation, the court, on application of a probation officer or of the offender, or on its own motion, may modify the requirements imposed upon the offender or add further requirements authorized by section 252 of this title.
  2. Whenever the court proposes any modification of the conditions of probation, the probationer shall have a reasonable opportunity to contest the modification prior to its imposition.
  3. [Repealed.]

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1981, No. 223 (Adj. Sess.), § 19; 2003, No. 57 , § 8, eff. July 1, 2004.

History

Amendments--2003. Subsec. (c): Repealed.

Amendments--1981 (Adj. Sess.). Added "; revocations" at the end of the section heading. Subsec. (c): Added.

Prior law. 28 V.S.A. § 1209.

Expiration of 2003 amendment. 2003, No. 57 , § 16 provides for the repeal of the 2003 amendment to this section which effectively repealed subsec. (c) on July 1, 2007.

Effective date of 2003 amendment. 2003, No. 57 , § 15 provides that Sec. 8 of that act which repeals subsec. (c) of this section shall take effect on July 1, 2004.

ANNOTATIONS

Analysis

1. Modification .

Defendant failed in his argument that the court was without authority to both increase the portion of his sentence to serve and reimpose his probation with added conditions because each of these actions is granted by separate subdivisions of 28 V.S.A. § 304(b). No reason can be found why the powers contained in the subsection must be mutually exclusive, and, in any event, the court's authority to add probation conditions is also granted by subsection (a) of this section, and there is no indication in this section that it cannot be used along with other powers. State v. Woolbert, 181 Vt. 619, 926 A.2d 626 (mem.) (April 2, 2007).

Where defendant's challenge to a condition of probation came five months after it was imposed, there was no error in the trial court's denial of defendant's pro se motion to modify. State v. Klunder, 179 Vt. 563, 892 A.2d 927 (mem.) (December 13, 2005).

The Legislature placed the power to impose probation conditions on the court, and not on the corrections department and its employees; similarly, the power to modify probation conditions also rests exclusively with the courts. State v. Rivers, 178 Vt. 180, 878 A.2d 1070 (June 10, 2005).

Probation conditions contained in a sentence represent a contract between the probationer and the court; the court may modify those conditions where the modification is sought by the defendant. State v. Whitchurch, 155 Vt. 134, 577 A.2d 690 (1990).

Since a probation agreement is contractual, changing the terms of probation without either the probationer's consent or a change in circumstances betrays the justifiable expectation that the agreement will be honored. State v. Day, 147 Vt. 93, 511 A.2d 995 (1986).

*2. Prerequisites.

At a minimum, a significant change in a probationer's circumstances must be established to provide a sufficient cause for imposing harsher or more restrictive conditions on a probationary sentence. State v. Day, 147 Vt. 93, 511 A.2d 995 (1986).

3. Jurisdiction.

Court did not have jurisdiction to act on defendant's failure to live up to conditions of his probation where defendant's prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

4. Particular conditions .

Where a probation condition proscribed defendant's interaction with all children under the age of sixteen, but made no mention of specific public locations or events where children are often present, by prohibiting defendant from attending a fair, his probation officer converted the probation condition from a contact-based condition to a location-based condition, and in so doing, the officer crossed the line between condition interpretation and modification. State v. Rivers, 178 Vt. 180, 878 A.2d 1070 (June 10, 2005).

Cited. State v. Sanborn, 155 Vt. 430, 584 A.2d 1148 (1990).

§ 254. Attendance at treatment facility.

  1. The court may require a person as a condition of probation to participate as a resident or nonresident in programs at a treatment center for all or part of the period of probation, provided that the Commissioner certifies that adequate treatment facilities, personnel, and programs are available. If the Commissioner determines that the person's residence in the center or participation in its programs, or both, should be terminated, because the person can derive no further significant benefits from such residence or participation, or both, or because his or her residence or participation adversely affects the rehabilitation of other residents or participants, he or she shall so notify the court, which shall thereupon, by order, make such other provision with respect to the person on probation as it deems appropriate.
  2. A person residing in or participating in a program at a treatment center shall be required to abide by the rules and regulations of the center and may be required to pay such cost incident to residence as the Commissioner deems appropriate.

    Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited. State v. Sanborn, 155 Vt. 430, 584 A.2d 1148 (1990).

§ 255. Discharge.

  1. Upon the termination of the period of probation or the earlier discharge of the probationer in accordance with section 251 of this title, the probationer shall, unless the court has ordered otherwise or under 13 V.S.A. § 7043(l) , be relieved of any obligations imposed by the order of the court and shall have satisfied the sentence for the crime.
  2. [Repealed.]
  3. A court hearing shall be held prior to discharging an offender from probation for a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2001, No. 134 (Adj. Sess.), § 6; 2003, No. 57 , § 9, eff. July 1, 2004; 2009, No. 1 , § 41.

History

2016. In subsec. (a), removed a reference to subsec. (b), which was repealed by 2003, No. 57 , § 9.

Amendments--2009. Added the subsec. (a) designation and added subsec. (c).

Amendments--2003. Subsec. (b): Repealed.

Amendments--2001 (Adj. Sess.) Subsec. (a): added the (a) designation, inserted "unless the court has ordered otherwise under subsection (b) of this section or under subsection 7043(l) of Title 13", and substituted "the sentence" for "his sentence"; and added subsec. (b).

ANNOTATIONS

Analysis

1. Construction .

Under Model Penal Code upon which Vermont statute is based, where sentence is made a condition of probation and the probationer is discharged before the sentence is served, the defendant does not have to serve the sentence because the state could no longer enforce the probation condition. State v. Papazoni, 159 Vt. 578, 622 A.2d 501 (1992).

Where conviction for driving under the influence, death resulting, resulted in sentence of 3 to 15 years, all suspended except one year of prison which was stayed pending an appeal during which time defendant completed probation and was discharged, argument was rejected that discharge from probation relieved defendant of all further obligations for the crime, including the one-year prison sentence; despite plain meaning, statute providing that upon fulfillment of probationary obligation a defendant shall have satisfied his sentence for the crime and cannot be required to fulfill his prison sentence does not apply to split sentences since such construction would be irrational and contrary to legislative intent of model penal provision from which statute derived. State v. Papazoni, 159 Vt. 578, 622 A.2d 501 (1992).

2. Consecutive sentences.

When a prisoner on probation is convicted of a subsequent offense, criterion imposed by section 7032 of Title 13, governing imposition of consecutive sentences, that a subsequent conviction must occur before the defendant has been discharged from a prior sentence, must be read with reference to section 251 of this title, governing duration of probation, and this section; together, they permit a subsequent court, in its discretion, to impose a sentence consecutive to probation. In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983).

3. Extension of probation.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant's probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

4. Prescribed period of probation.

In cases where the period of probation is prescribed by the sentencing court, discharge from probation is automatic upon the expiration of the period. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

Cited. United States v. Tomasi, 313 F.3d 653 (2d Cir. 2002).

§ 256. Graduated sanctions for technical violations.

  1. At any time before the discharge of the probationer or the termination of the period of probation if, in the judgment of the Commissioner, the probationer has violated a condition or conditions of his or her probation, other than a condition that the probationer pay restitution to the Department or a violation which constitutes a new crime, the Commissioner may sanction the probationer in accordance with rules adopted pursuant to subsection (b) of this section.  However, no probationer shall be incarcerated except pursuant to the provisions of subchapter 3 of this chapter.
  2. The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to arrest or citation under section 301 of this title.

    Added 2009, No. 146 (Adj. Sess.), § D8.

Subchapter 3. Revocation of Probation

§ 301. Summons or arrest of probationer.

At any time before the discharge of the probationer or the termination of the period of probation:

  1. Summons or warrant for arrest.  The court may summon the probationer to appear before it or may issue a warrant for his or her arrest.
  2. Arrest or citation of person on probation.  Any correctional officer may arrest a probationer without a warrant if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution; or may deputize any other law enforcement officer to arrest a probationer without a warrant by giving him or her a written statement setting forth that the probationer has, in the judgment of the correctional officer, violated a condition or conditions of his or her probation other than a condition that the probationer pay restitution. The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her. In lieu of arrest, a correctional officer may issue a probationer a citation to appear for arraignment. In deciding whether to arrest or issue a citation, an officer shall consider whether issuance of a citation will reasonably ensure the probationer's appearance at future proceedings and reasonably protect the public.
  3. No right of action.  Any probationer arrested and detained in accordance with the provisions of this chapter shall have no right of action against any law enforcement officer, correctional officer, employee of the Department of Corrections, or any other persons because of such arrest and detention.
  4. Detention pending hearing for probationer.  Pending arraignment for any charge of violation, the probationer shall be detained at a correctional facility unless issued a citation by a correctional officer. Thereafter, the court may release the probationer pursuant to 13 V.S.A. § 7554 . There shall be no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony.
  5. Release of certain persons on probation for nonviolent offenses.  su
    1. At arraignment, if the court finds that bail or conditions of release will reasonably ensure the probationer's appearance at future proceedings and conditions of release will reasonably protect the public, the court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony pursuant to 13 V.S.A. § 7554 .
    2. As used in this section:
      1. "Nonviolent felony" means a felony offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64.
      2. "Nonviolent misdemeanor" means a misdemeanor offense that is not a listed crime as defined in 13 V.S.A. § 5301(7) or an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64 or 13 V.S.A. § 1030 .

        Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 2; 1997, No. 148 (Adj. Sess.), § 89, eff. April 29, 1998; 1997, No. 152 (Adj. Sess.), § 4; 2003, No. 57 , § 10, eff. July 1, 2004; 2009, No. 157 (Adj. Sess.), § 5; 2017, No. 62 , § 2; 2019, No. 131 (Adj. Sess.), § 283.

History

2013. In subdiv. (4), in the fourth sentence, substituted "As used in" for "For purposes of" to conform to V.S.A. style.

Amendments--2019 (Adj. Sess.). Subdiv. (1): Added the subdiv. heading.

Subdiv. (5): Added the subdiv. heading.

Amendments--2017. Subdiv. (2): Inserted "or citation" following "Arrest" in the first sentence; and added the fourth and fifth sentences.

Subdiv. (4): Deleted "continue to" preceding "be detained" and added "unless issued a citation by a correction officer" following "facility" in the first sentence, and deleted "and the probation violation did not constitute a new crime" following "nonviolent felony" in the third sentence.

Subdiv. (5): Amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (4): Amended generally.

Amendments--2003. Added "other than a condition that the probationer pay restitution" following "his or her probation".

Amendments--1997 (Adj. Sess.). Act No. 152 added subdiv. headings and added "or her" after "him" and "his" throughout the section.

Subdiv. (2): Act No. 152 substituted "correctional officer" for "probation officer" in two places, added "if, in the judgment of the correctional officer, the probationer has violated a condition or conditions of his or her probation" and substituted "to arrest a probationer without a warrant" for "to do so" in the first sentence, and substituted "the person" for "the probationer" and for "he" in the second sentence.

Subdiv. (3): Act No. 152 substituted "any law enforcement officer, correctional officer, employee of the department of corrections" for "the probation officer".

Subdiv. (4): Act No. 152 substituted the current provisions for "The commissioner or any employee acting under his direction may apprehend and detain the probationer under the authority of the warrant issued by the court which placed the offender on probation, in accordance with section 203 of this title."

Act No. 148, amending Act No. 152, substituted "arraignment for" for "a hearing on the merits upon" and added the last two sentences.

Amendments--1973. Deleted former subdiv. (2) and redesignated former subdivs. (3)-(5) as (2)-(4).

Prior law. 28 V.S.A. § 1218.

ANNOTATIONS

Analysis

1. Jurisdiction.

Court did not have jurisdiction to act on defendant's failure to live up to conditions of his probation where defendant's prescribed probationary period had already terminated without the filing of a complaint or the issuance of an arrest warrant. State v. White, 150 Vt. 132, 549 A.2d 1069 (1988).

2. Execution of warrant.

One year delay in executing warrant for defendant's arrest for a probation violation was not barred by this section. State v. Ellis, 149 Vt. 264, 542 A.2d 279 (1988).

3. Notice to probationer.

Without provision of notice to defendant of her violation of probation during its term, court was without authority to extend defendant's probation after it had expired. State v. Murray, 159 Vt. 198, 617 A.2d 135 (1992).

4. Violations before commencement of probation term.

Probation may be revoked for acts committed by a defendant after imposition of the sentence but before commencement of the probationary term. State v. St. Francis, 160 Vt. 352, 628 A.2d 556 (1993).

5. Bail.

Defendants who fit the statutory criteria of the statute regarding detention of a probationer following a charge of a violation have a statutory right to bail or release, and the conditions of that release should be determined by a consideration of the factors in the pretrial release statute. It remains the case that the court has discretion to release any probationer, but those probationers with a right to bail may not be held without bail. State v. Kane, 203 Vt. 652, 160 A.3d 1020 (mem.) (Nov. 22, 2016).

Because defendant's underlying crime was a nonviolent felony and her probation violations - failing to meet with her probation officer, failing to keep a curfew, failing to report a change of address, and failing to comply with electronic monitoring - did not amount to new crimes, defendant had a right to conditions of release. State v. Kane, 203 Vt. 652, 160 A.3d 1020 (mem.) (Nov. 22, 2016).

§ 302. Notice; hearing.

  1. The court shall not revoke probation without a proceeding conducted in open court.  The procedure of such hearing shall include:
    1. the probationer has violated one or more conditions of probation;
    2. aprior written notice to the probationer stating the alleged violation with which he or she is charged and that he or she has a right to legal counsel at the hearing;
    3. the right to legal counsel if requested by the probationer to be assigned by the court in the same manner as in criminal cases;
    4. establishment of the alleged violation by a preponderance of the evidence by the State, if the probationer contests the allegation in open court;
    5. the maintenance of a record of the proceeding, which shall be preserved in such a manner that it can be transcribed as needed.
  2. An order revoking probation shall be appealable in the same manner as would be applicable to his or her original conviction.
  3. The State shall have the right to be represented by counsel in any revocation hearing.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 3.

History

Amendments--1973. Subdiv. (a)(1): Deleted "or" following "probation".

Cross References

Cross references. Preliminary hearing and revocation hearing, see Rule 32.1(a), Vermont Rules of Criminal Procedure.

ANNOTATIONS

Analysis

1. Findings.

The fact that findings of a court at a probation revocation hearing are oral and transcribed, rather than prepared and typed subsequent to the hearing, does not alter the legal standard of appellate review; in either case, if the findings are deficient, a case may be remanded to the trial court for correction. State v. Allen, 145 Vt. 593, 496 A.2d 168 (1985).

A probationer's federal due process rights are adequately protected when a court states its essential findings at a probation revocation hearing on the record. State v. Allen, 145 Vt. 593, 496 A.2d 168 (1985).

2. Relief.

After a revocation of probation, defendant's proper avenue for relief is through an appeal or habeas corpus proceeding. State v. Therrien, 140 Vt. 625, 442 A.2d 1299 (1982).

Permitting a motion for reconsideration of sentence under section 7042 of Title 13 after a revocation of probation would unnecessarily burden the revocation proceeding and unjustifiably give the defendant another chance to attack his original sentence. State v. Therrien, 140 Vt. 625, 442 A.2d 1299 (1982).

3. Hearsay evidence.

Hearsay evidence admitted by the trial court in a probation revocation hearing with regard to defendant's discharge from a residential treatment facility did not meet any of the traditional guarantees of trustworthiness. There was no evidence to corroborate the hearsay allegations regarding defendant's misbehavior at the facility; the evidence contained judgments and conclusions, not objective facts; and the hearsay allegations were not factually detailed, but rather stated as general statements and conclusions. State v. Decoteau, 182 Vt. 433, 940 A.2d 661 (Aug. 31, 2007).

4. Sufficiency of evidence.

Defendant's delay in completing a domestic violence program and his refusal to admit to the conduct underlying his offense at the intake interview in violation of program requirements were sufficient to support the probation violation found by the trial court and the extension of the probation term by an additional year. State v. Provost, 199 Vt. 568, 133 A.3d 826 (Aug. 1, 2014).

Cited. State v. Bushey, 149 Vt. 378, 543 A.2d 1327 (1988); State v. Millard, 149 Vt. 384, 543 A.2d 700 (1988).

§ 303. Grounds for revocation.

  1. Probation shall not be revoked unless the probationer violates a condition of his or her probation or is convicted of another crime.  The violation or conviction shall be both a necessary and a sufficient ground for the revocation of probation.
  2. The court shall not revoke probation and order the confinement of the probationer unless the court finds on the basis of the original offense and the intervening conduct of the probationer that:
    1. confinement is necessary to protect the community from further criminal activity by the probationer;
    2. the probationer is in need of correctional treatment which can most effectively be provided if he or she is confined; or
    3. it would unduly depreciate the seriousness of the violation if probation were not revoked.

      Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Analysis

1. Generally.

Probation is intended to allow a defendant opportunity for rehabilitation at the same time it protects society; revocation of probation will result when continuation of probation conditions would be at odds with need to protect public and society's interest in rehabilitation, in other words, when rehabilitative purposes of probation have failed and defendant is a threat to society. State v. Lockwood, 160 Vt. 547, 632 A.2d 655 (1993).

2. Findings.

A court revoking probation need not specifically identify which of the alternatives set forth in subsection (b) of this section it has employed so long as at least one readily supports the court's conclusion. State v. Millard, 149 Vt. 384, 543 A.2d 700 (1988).

Where a probationer fails to attend alcohol abuse treatment sessions imposed as a condition of probation, a court may find that he is in need of correctional treatment. State v. Millard, 149 Vt. 384, 543 A.2d 700 (1988).

Finding of court which revoked appellant's probation that appellant had a severe alcohol problem and that probation could not help him was in all practical respects a finding that he was in need of correctional treatment which could best be provided by incarceration and satisfied requirement of subsection (b) of this section that court make one of three specific findings before it may revoke probation. State v. Allen, 145 Vt. 593, 496 A.2d 168 (1985).

3. Violation of condition of probation.

Following the establishment of a violation of probation the trial court erred in revoking defendant's probation and modifying his sentence without obtaining defendant's waiver. In re Jankowski, 203 Vt. 418, 157 A.3d 573 (Oct. 14, 2016).

As the trial court was not reviewing a programming decision of the Department of Corrections or its internal consequences, but was deciding whether to revoke defendant's probation, remand was required when the trial court failed to determine whether defendant had violated a rule against physical violence or threats of physical violence, and when it did not exercise its discretion to determine whether the alleged violation was such that revocation should be ordered. State v. Cavett, 199 Vt. 546, 126 A.3d 1287 (2015).

There was sufficient proof that defendant violated a probation condition that he not have relationships with people with children under 18. Although there was no direct proof that a woman whom defendant had been seeing had children under 18, it could be inferred from defendant's volunteering the information that they lived with their father out of state that they were minors; the trial court's conclusion that defendant had a relationship with the woman was also supported by evidence that he had exchanged phone numbers with her, borrowed her car, and bought roses for her. State v. Amidon, 188 Vt. 617, 8 A.3d 1050 (mem.) (2010).

Trial court did not err in revoking defendant's probation when it found that he had violated four conditions of probation, including one that he not have friendships or relationships with people who had children under the age of 18. There was sufficient evidence from the context of a remark by defendant that the children of an acquaintance were under age 18; defendant was procedurally barred from challenging the findings of violation, as his argument was not raised during the sentencing phase or during the evidentiary hearing; defendant's challenge to one of the four violations found did not implicate the validity of the entire proceeding; and defendant had waived his right to collaterally attack the condition in question by failing to challenge that condition after conviction. State v. Amidon, 188 Vt. 617, 8 A.3d 1050 (mem.) (2010).

Defendant, whose probation required him not to initiate or maintain contact with children under 18, was not found to have violated the condition based merely on incidental proximity contact in a public place. The evidence demonstrated that on a number of occasions defendant visited his son's residence, where he knew young grandchildren would be, and visited in the yard in the midst of the children; that some of these visits lasted hours; and that defendant freely mingled with the children. State v. Bailey, 187 Vt. 624, 992 A.2d 320 (mem.) (2010).

Term "mingle" means more than proximity contact; rather, as defined in a dictionary, it means, "to associate or unite, as . . . persons by ties of relationship; to join in company." Therefore, defendant's conduct of freely mingling with children at his son's residence exceeded "mere proximity" to the prohibited class and violated a probation condition that required defendant not to initiate or maintain contact with children under 18. State v. Bailey, 187 Vt. 624, 992 A.2d 320 (mem.) (2010).

By visiting his family at their home and staying for periods of up to two hours, during which time he mingled with underage family members, defendant plainly initiated and maintained contact with members of the prohibited class in violation of a probation condition that he not initiate or maintain contact with children under 18. State v. Bailey, 187 Vt. 624, 992 A.2d 320 (mem.) (2010).

Because the question of whether verbal threats constituted threatening behavior in the context of probation conditions had not been decided by the court, any error of law the trial court might have made in revoking defendant's probation for verbally threatening his landlord was not obvious. Thus, there was no plain error, and the court did not have to reach defendant's claim that his curfew violations alone, which he did not contest, did not support revocation. State v. Gilbert, 185 Vt. 602, 969 A.2d 125 (mem.) (2009).

Mildly retarded adult defendant's alleged inability to comply with conditions of probation at time of violation did not bar revocation of his probation, where evidence did not support defendant's argument that performance of probation warrant was impossible, and court took defendant's mental capacity into consideration at revocation hearing. State v. Lockwood, 160 Vt. 547, 632 A.2d 655 (1993).

Where defendant was convicted in New York for operating "a motor vehicle while his ability to operate such vehicle [was] impaired by the consumption of alcohol," in violation of New York Vehicle and Traffic Law § 1192(1), trial court did not abuse its discretion in revoking defendant's probation for violation of probationary condition that he not use alcoholic beverages to the extent that they interfered with his employment or the welfare of his family, himself, or any other person, since defendant posed a possible danger to the welfare of both himself and others by his operation of a motor vehicle while his ability to operate that vehicle was impaired by his consumption of alcohol. State v. Bushey, 149 Vt. 378, 543 A.2d 1327 (1988).

4. Conviction of another crime.

Where defendant was convicted in New York for driving while impaired, in violation of New York Vehicle and Traffic Law § 1192(1), the fact that Vermont had no crime specifically denominated as driving while impaired did not necessitate reversal of trial court's revocation of defendant's probation for violation of probationary condition that he not be convicted of another offense. State v. Bushey, 149 Vt. 378, 543 A.2d 1327 (1988).

Where defendant was convicted in New York for operating "a motor vehicle while his ability to operate such motor vehicle [was] impaired by the consumption of alcohol," in violation of New York Vehicle and Traffic Law § 1192(1), there were sufficient similarities between the New York offense and section 1201(a)(2) of Title 23, prohibiting driving while under the influence of intoxicating liquor, to justify trial court's revocation of defendant's probation for violation of probationary condition that he not be convicted of another offense. State v. Bushey, 149 Vt. 378, 543 A.2d 1327 (1988).

5. Procedure.

In a probation violation case, an administrative judge properly refused to presume bias of the trial judge based on the trial judge's comments at the original sentencing hearing, where the trial judge had warned defendant that if he did not abide by the probation conditions, he would see to it that he would serve as much of the remaining sentence as possible. While the comments could have been better phrased, they appeared to be a warning to defendant to abide by his probation conditions. State v. Bailey, 187 Vt. 624, 992 A.2d 320 (mem.) (2010).

6. Jurisdiction.

Fact that defendant was in the process of challenging a probation condition did not prevent the State from filing a complaint based on an alleged violation of the condition or deprive the court of jurisdiction to find a violation of such a condition. State v. Bailey, 187 Vt. 624, 992 A.2d 320 (mem.) (2010).

Cited. State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988); State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993).

§ 304. Disposition alternatives upon violation of probation.

  1. If a violation is established by a proceeding conducted in accordance with section 302 of this title, the court may, in its discretion, revoke probation and require the probationer to serve the sentence that was suspended or order that the sentence be served in the community pursuant to the provisions of chapter 6 of this title.
  2. As an alternative to revocation and imposition of sentence as provided in subsection (a) of this section, the court, in its discretion, after a violation has been established, may:
    1. continue the probationer on the existing sentence;
    2. effect, in accordance with subsection 253(b) of this title, necessary or desirable changes or enlargements in the conditions of probation;
    3. conduct a formal or informal conference with the probationer in order to reemphasize to him or her the necessity of compliance with the conditions of probation;
    4. issue a formal or informal warning to the probationer that further violations may result in revocation of probation by the court; or
    5. continue the probationer on the existing sentence, but require the probationer to serve any portion of the sentence.
  3. Prior to ordering either revocation or an alternative sanction for a violation of probation in accordance with subsection (b) of this section, the court shall consider, but has complete discretion whether to follow, sanction guidelines established by the Department of Corrections pursuant to subsection (e) of this section.
  4. No plea agreement shall limit the court's discretion under this section.
  5. The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for probation violations as an alternative to revocation and imposition of the original sentence. These guidelines do not grant the Department any authority to impose sanctions for probation violations.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1989, No. 291 (Adj. Sess.), § 5; amended 2001, No. 124 (Adj. Sess.), § 12, eff. June 5, 2002; 2005, No. 63 , § 8.

History

Amendments--2005 Added new subsec. (c), redesignated former subsec. (c) as subsec. (d) and added subsec. (e).

Amendments--2001 (Adj. Sess.). Subdiv. (b)(2): Substituted "subsection 253(b)" for "section 253(b)".

Subdiv. (b)(3): Substituted "reemphasize to him or her" for "re-emphasize to him".

Subdiv. (b)(5): Added.

Subsec. (c): Added.

Amendments--1989 (Adj. Sess.). Subsec. (a): Added "or order that the sentence be served in the community pursuant to the provisions of chapter 6 of this title" following "suspended".

Effective date of amendment; motion to reconsider. 2001, No. 124 (Adj. Sess.), § 14(b) provides: "Any probation revocation imposed after January 27, 2002 and before the effective date [June 5, 2002] of Sec. 12 [which amended this section] of this act may be subject to a motion to reconsider the disposition. In deciding the motion, the court shall have the authority to impose any portion of the underlying sentence pursuant to subdivision 304(b)(5) of Title 28. A motion to reconsider under this subsection shall be filed within 90 days of the effective date [June 5, 2002] of Sec. 12 of this act."

Cross References

Cross references. Reduction of sentence upon revocation of probation, see Rule 35(b), Vermont Rules of Criminal Procedure.

Prior law. 28 V.S.A. § 1216.

ANNOTATIONS

Analysis

1. Construction.

Defendant failed in his argument that the court was without authority to both increase the portion of his sentence to serve and reimpose his probation with added conditions because each of these actions is granted by separate subdivisions of subsection (b). No reason can be found why the powers contained in the subsection must be mutually exclusive, and, in any event, the court's authority to add probation conditions is also granted by 28 V.S.A. § 253(a), and there is no indication in that section that it cannot be used along with other powers. State v. Woolbert, 181 Vt. 619, 926 A.2d 626 (mem.) (April 2, 2007).

Trial court's sentencing power, once it has found a violation of probation, is limited to the alternatives explicitly laid out in subsection (a) of this section. State v. Pratt, 173 Vt. 562, 795 A.2d 1148 (mem.) (2002).

The language of subsection (a) of this section, when read together with 28 V.S.A. § 205(a), did not impliedly give the option to the sentencing court to suspend part of the underlying sentence. State v. Pratt, 173 Vt. 562, 795 A.2d 1148 (mem.) (2002).

Discretionary language in 28 V.S.A. § 304 conflicted with mandatory and more specific language in 13 V.S.A. § 7041, and therefore trial court properly ruled that it was required to impose sentence after finding defendant violated a condition of probation outlined in his deferred-sentence agreement. State v. Rafuse, 168 Vt. 631, 726 A.2d 18 (mem.) (1998).

2. Discretion of court.

Absent a showing that the trial court abused or withheld its discretion, the enforcement of the original sentence after a finding of violation of probation is without error. State v. Peck, 149 Vt. 617, 547 A.2d 1329 (1988).

When a violation of probation is established, the trial court has discretion to revoke probation and require the original sentence to be served, continue probation, or alter the conditions of probation. State v. Therrien, 140 Vt. 625, 442 A.2d 1299 (1982).

3. Alteration of sentence.

Since all four of defendant's sentences were to be served concurrently, trial court acted improperly in severing defendant's sentence on one charge after he admitted violating conditions of his probation, where effect was to alter defendant's sentence on that charge from concurrent to consecutive, to be served after he was released from incarceration on other three charges. State v. Draper, 167 Vt. 636, 712 A.2d 894 (mem.) (1998).

Defendant's delay in completing a domestic violence program and his refusal to admit to the conduct underlying his offense at the intake interview in violation of program requirements were sufficient to support the probation violation found by the trial court and the extension of the probation term by an additional year. State v. Provost, 199 Vt. 568, 133 A.3d 826 (Aug. 1, 2014).

4. Particular cases.

Following the establishment of a violation of probation the trial court erred in revoking defendant's probation and modifying his sentence without obtaining defendant's waiver. In re Jankowski, 203 Vt. 418, 157 A.3d 573 (Oct. 14, 2016).

As the trial court was not reviewing a programming decision of the Department of Corrections or its internal consequences, but was deciding whether to revoke defendant's probation, remand was required when the trial court failed to determine whether defendant had violated a rule against physical violence or threats of physical violence, and when it did not exercise its discretion to determine whether the alleged violation was such that revocation should be ordered. State v. Cavett, 199 Vt. 546, 126 A.3d 1287 (2015).

Cited. State v. Daudelin, 151 Vt. 214, 559 A.2d 668 (1989); State v. Lockwood, 160 Vt. 547, 632 A.2d 655 (1993); State v. Leggett, 167 Vt. 438, 709 A.2d 491 (mem.) (1997); State v. Priest, 170 Vt. 576, 743 A.2d 1072 (mem.) (1999).

§ 305. Duration of alternative sentence.

When a probationer who has paid a portion of a fine, as provided in subdivision 252(b)(7) of this title, is committed for a violation of the conditions of his or her probation, the amount so paid shall be stated in the mittimus and shall be taken into account in determining the expiration of the alternative sentence the same as though paid after commitment.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Revision note. Reference to "section 252(b)(6)" of this title changed to "section 252(b)(7)" to reflect changes made by 1983 (Adj. Sess.) amendment of § 252.

Prior law. 28 V.S.A. § 1217.

CHAPTER 6. SUPERVISED COMMUNITY SENTENCE

History

Purpose. 1989, No. 291 (Adj. Sess.), § 1, provided: "It is the purpose of the general assembly to authorize the use of supervised community sentences in lieu of imprisonment in order to provide community-based rehabilitation programs for offenders who do not pose a substantial risk of harm to the public and who require less restriction than institutional custody but more than probation supervision and in order to increase opportunities for offenders to make restitution to victims and reparation to the community."

Cross References

Cross references. Grant program for community-based halfway houses and programs, see § 911 et seq. of this title.

Subchapter 1. General Provisions

§ 351. Definitions.

As used in this chapter:

  1. "Supervised community sentence" means a form of imprisonment to be served outside the walls of a correctional facility, subject to the rules of the Commissioner and subject to revocation and incarceration pursuant to this chapter.
  2. "Alternative sentencing program" means a residential or nonresidential program operated by the Department or contracted with public or private agencies to provide any of a range of sanctions, treatment, or control functions, to include: half-way houses, day centers, community work programs, residential treatment centers, individual and group counseling, house arrest, electronic monitoring, and intensive supervision.

    Added 1989, No. 291 (Adj. Sess.), § 4.

History

2019. In subdiv. (2), deleted "without limitation" following "to include" in accordance with 2013, No. 5 , § 4.

§ 352. Supervised community sentence.

  1. At the request of the court, the Commissioner of Corrections shall prepare a preliminary assessment to determine whether an offender should be considered for a supervised community sentence.
  2. Upon adjudication of guilt, a finding of violation of probation, or a finding of civil contempt, and only after the filing of a recommendation for supervised community sentence by the Commissioner of Corrections, the court may impose a sentence of imprisonment and order that all or part of the term of imprisonment be served in the community subject to the provisions of this chapter. Such a sentence shall not limit the court's authority to place a person on probation and to establish conditions of probation.
  3. The conditions of a supervised community sentence shall be contained in a plan prepared by the Commissioner of Corrections as part of the presentence investigation and submitted to the court.  The plan shall be designed to encourage the offender to lead a law-abiding life or assist the offender to do so, and to reasonably assure the safety of the community, repayment of any restitution, and performance of service to the community in compensation for the criminal act itself.  The plan shall set forth the offender's responsibilities under the sentence, conditions of behavior, objectives for treatment and supervision, and the form of reparation to the community.  The court may approve or reject but not modify the plan.
  4. Conditions in a plan for a supervised community sentence may be changed by the Commissioner of Corrections by adding, deleting, or modifying a condition.  The offender may request the Parole Board to review an addition, deletion, or modification that substantially changes the plan or that substantially alters the limits on the offender's liberty without good cause or an addition, deletion, or modification that is clearly unreasonable.  The change shall go into effect pending the Parole Board's review, which shall be concluded promptly.  The decision of the Parole Board shall be final.

    Added 1989, No. 291 (Adj. Sess.), § 4; amended 2011, No. 119 (Adj. Sess.), § 10.

History

Amendments--2011 (Adj. Sess.) Subsec. (b): Inserted "or a finding of civil contempt" following "a finding of violation of probation".

§ 353. Powers and responsibilities of the Commissioner of Corrections; supervised community sentence.

The Commissioner shall be charged with the following powers and responsibilities regarding the administration of supervised community sentences:

  1. To maintain general supervision and treatment of persons serving a supervised community sentence.
  2. To establish alternative sentencing programs for the sanction, treatment, and control of offenders sentenced under this chapter and, in the Commissioner's discretion, to require payment of reasonable fees for such services.
  3. To award grants to local private or public agencies for the development and operation of alternative community programs in furtherance of the goals and purposes of this chapter, in accordance with policies established in this chapter and within the limits of any appropriation made for this purpose.
  4. In accordance with 3 V.S.A. chapter 25, to adopt rules consistent with the provisions of this chapter regarding the supervision, maintenance, treatment, and all attendant matters, including standards for the deletion, addition, and modification of conditions, to be applied to offenders sentenced to a term of imprisonment under a supervised community sentence.
  5. To detain for safekeeping at a correctional facility any offender who allegedly has violated the conditions of supervision pending a hearing before the Parole Board.
  6. To give to the Parole Board, or its properly accredited representatives, access at all reasonable times to any offender who has been sentenced under this chapter and provide the Board or its representatives such reports as the Board may require concerning the conduct of any offender under the supervision of the Commissioner and any other facts considered by the Board pertinent in determining whether the supervised community sentence should be revoked or continued.

    Added 1989, No. 291 (Adj. Sess.), § 4.

§ 354. Rules of Parole Board.

The Parole Board shall adopt such rules consistent with the provisions of this chapter as it considers proper and necessary regarding the arrest, detention, and release of offenders pending a review by the Board, the administration of Board hearings, and all other attendant matters.

Added 1989, No. 291 (Adj. Sess.), § 4.

Cross References

Cross references. Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

Subchapter 2. Duration

§ 361. Reduction of term.

Each successful day completed by an offender serving a supervised community sentence while in the community shall be counted as one day served for the total sentence of imprisonment. So long as an offender is serving a supervised community sentence in the community, the offender shall not be awarded a reduction of term for good behavior pursuant to section 811 of this title.

Added 1989, No. 291 (Adj. Sess.), § 4.

§ 362. Duration of supervised community sentence.

A sentence of supervised community sentence shall not terminate earlier than the expiration of the minimum term of imprisonment ordered by the sentencing court. Upon the expiration of the minimum sentence, the offender's case shall be reviewed by the Parole Board. If the offender has successfully completed the obligations of supervised community sentence responsibilities, including restitution if imposed by the sentencing court, and successfully abided by the conditions of the sentence, the Commissioner may recommend to the Parole Board that the offender be paroled from supervised community sentence. The Board may, if warranted by the conduct of the offender and the ends of justice:

  1. continue the offender under supervised community sentence until the expiration of the maximum term of sentence;
  2. release the offender under parole supervision pursuant to chapter 7 of this title; or
  3. terminate the offender from supervision altogether.

    Added 1989, No. 291 (Adj. Sess.), § 4.

§ 363. Summons or arrest of person serving a supervised community sentence.

  1. Parole Board warrant.  The Parole Board may issue a warrant for the arrest of an offender or a notice, to be served personally upon the offender, requiring the offender to appear before the Board, if the Board has reason to believe that a violation of conditions or violation of law has occurred. The warrant shall authorize any law enforcement officers and any correctional officers to return the offender to the custody of a correctional facility, or to any other suitable detention facility designated by the Board.
  2. Broken terms of parole.  If the Board issues a warrant for the return of an offender and it is found that the warrant cannot be served, the offender shall, for purposes of extradition only, be considered as having broken the terms of parole.
  3. Arrest of person on serving supervised community sentence.  Any correctional officer designated by the Commissioner may arrest a person in supervised community sentence without a warrant if, in the judgment of the correctional officer, the person has violated a condition or conditions of supervised community sentence, or may deputize any other law enforcement officer to do so by giving the officer a written statement setting forth that the offender has, in the judgment of the correctional officer, violated a condition or conditions of supervised community sentence. The written statement delivered with the offender by the arresting officer to the supervising officer of the correctional facility to which the offender is brought for detention shall be sufficient warrant for detaining the offender. There shall be no right to bail or release.
  4. No right of action.  A person serving in supervised community sentence arrested and detained in accordance with the provisions of this chapter and rules established by the Commissioner, shall not have a right of action against the Commissioner, the Parole Board, any law enforcement officer, correctional officer, employee of the Department of Corrections, or any other person because of the arrest and detention.

    Added 1989, No. 291 (Adj. Sess.), § 4; amended 1997, No. 148 (Adj. Sess.), § 89, eff. April 29, 1998; 1997, No. 152 (Adj. Sess.), § 5.

History

Amendments--1997 (Adj. Sess.). Act No. 152 amended the section generally.

Act No. 148, amending Act No. 152, added the last sentence in subsec. (c).

§ 364. Release pending hearing.

Pending a hearing upon any charge of violation, the Parole Board may authorize the offender's release from detention in accordance with the procedures set forth in 13 V.S.A. § 7554 . For the purposes of this section, a judicial officer as defined in 7554(f) shall mean the Chair of the Parole Board or designee.

Added 1989, No. 291 (Adj. Sess.), § 4.

History

Revision note. Substituted "subsection § 7554(f) of Title 13" for "subsection 7554(a) of this Title" in the second sentence to correct an error.

§ 365. Notification of Board; hearing.

  1. Upon the arrest and detention of an offender, the supervising Corrections employee shall notify the Board immediately and shall submit in writing a report describing the alleged violation of a condition or conditions or alleged violation of law.
  2. Upon receipt of the notification, or upon an arrest by warrant in accordance with this chapter, the Board shall cause the offender together with the supervising Corrections employee to be brought before it promptly for a hearing regarding the alleged violation.  Corrections employees may be represented by legal counsel, which shall be provided by the State upon request, at hearings of the Parole Board.  The offender shall have access to counsel as provided in parole revocation hearings.
  3. The Board may not revoke the service of supervised community sentence outside a correctional facility without an administrative hearing conducted pursuant to the procedures and rules applicable to parolees under federal and State due process and chapter 7 of this title.
  4. If the alleged violation is established by substantial evidence, the Board may enter such order as it determines to be necessary or desirable in accordance with this chapter.
  5. Within a reasonable period of time, the Board shall provide to the offender a written statement containing the Board's determination whether a violation has been established, a short summary of the evidence relied on, the disposition imposed, and a short summary of the reasons for the disposition.

    Added 1989, No. 291 (Adj. Sess.), § 4.

Subchapter 3. Violation and Revocation

§ 371. Authority of the Parole Board.

If the offender commits an act punishable as a crime, or violates a condition of sentence during the period of supervised community sentence, the Parole Board may revoke the offender's service of sentence outside a correctional facility and require the offender to serve all or part of the remaining sentence within a correctional facility, subject to the provisions for parole under chapter 7 of this title.

Added 1989, No. 291 (Adj. Sess.), § 4.

ANNOTATIONS

1. Construction .

If the prisoner violates a condition of parole, the Parole Board may revoke parole and require the prisoner to serve all or part of the sentence remaining within a correctional facility. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

§ 372. Disposition alternatives upon violation.

As an alternative to revocation and return of the offender to a correctional facility for the remainder of the maximum term of imprisonment, the Board in its discretion, after a violation has been established, may do one or more of the following:

  1. continue the offender on the same terms as existed prior to the violation;
  2. recommend to the Commissioner modified or new conditions of the plan;
  3. conduct a formal or informal conference with the offender in order to re-emphasize the necessity of compliance with the conditions of the offender's supervised community sentence.

    Added 1989, No. 291 (Adj. Sess.), § 4.

§ 373. Review of revocation.

  1. An offender may seek review of the Board's decision to revoke or impose other disposition in the Criminal Division of the Superior Court.  The review shall be in the nature of a petition for review under Rule 75 of the Vermont Rules of Civil Procedure and is limited to whether an offender's rights protected by the Vermont or U.S. Constitution have been violated and whether the requirements of section 365 of this title have been complied with.
  2. Return of the offender to a correctional facility or other appropriate disposition ordered by the Board shall not be stayed pending review by the original sentencing court.

    Added 1989, No. 291 (Adj. Sess.), § 4; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "criminal division of the superior court" for "district court" in the first sentence.

§ 374. Witnesses; production of records.

  1. The Board may issue subpoenas requiring the attendance of any witnesses and the production of any records, books, papers, and documents as it may consider necessary for investigation of the case of any person before it.  Subpoenas may be signed and oaths administered by any member of the Board.  Subpoenas so issued may be served by a parole or probation officer or a law enforcement officer, in the same manner as similar process in the Criminal Division of the Superior Court.
  2. The Criminal Division of the Superior Court, upon application of the Board, may compel the attendance of witnesses and the production of evidence before the Board in the same manner as it may compel them to attend or be produced before the court.
  3. All testimony given before the Board shall be given under oath.

    Added 1989, No. 291 (Adj. Sess.), § 4; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Substituted "criminal division of the superior court" for "district court" wherever it appears.

CHAPTER 7. PAROLE

Cross References

Cross references. Restitution as condition of parole, see § 7043 of Title 13.

Supervised community sentences, see § 351 et seq. of this title.

Subchapter 1. General Provisions

§ 401. Construction.

This chapter shall be construed to provide a method of supervising the serving of a sentence through the provision of parole services, but is not intended to affect the constitutional power of the Governor to fully, partially, or conditionally pardon inmates.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1001.

Cross References

Cross references. Power of governor to grant pardons, see § 20 of chapter II of Vermont Constitution.

ANNOTATIONS

Cited. Miner v. Chater, 137 Vt. 330, 403 A.2d 274 (1979); In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983).

§ 402. Definitions.

As used in this chapter:

  1. "Parole" means the release of an inmate to the community by the Parole Board before the end of the inmate's sentence subject to conditions imposed by the Board and subject to the supervision and control of the Commissioner. If a court or other authority files a warrant or detainer against an inmate, the Board may release him or her on parole to answer the warrant and serve any subsequent sentences.
  2. "Interview" means an appearance by the inmate at a meeting of the Parole Board.
  3. "Review" means an evaluation of an inmate's records without an appearance by the inmate before the Parole Board.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 148 (Adj. Sess.), § 55, eff. April 29, 1998; 2019, No. 148 (Adj. Sess.), § 2, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Intro. paragraph: Substituted "As" for "Whenever".

Amendments--1997 (Adj. Sess.). Added the subdiv. (1) designation, and added subdivs. (2) and (3).

Prior law. 28 V.S.A. § 1002.

ANNOTATIONS

Cited. State v. Bensh, 168 Vt. 607, 719 A.2d 1155 (mem.) (1998); State v. Benjamin, 182 Vt. 54, 929 A.2d 1276 (June 22, 2007).

§ 403. Powers and responsibilities of the Commissioner regarding parole.

The Commissioner is charged with the following powers and responsibilities regarding the administration of parole:

  1. To supervise and control persons placed on parole, subject to the rules and orders of the Parole Board as to the conditions of parole. The Commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole. Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways;
  2. To detain for safekeeping at a correctional facility any parolee who allegedly has violated the terms of his or her parole, pending a conference with the Parole Board at its next regularly scheduled meeting, such period of detention not to exceed 30 days;
  3. To establish and provide as he or she deems necessary outpatient counseling and treatment services to persons paroled from, or on pre-parole release or conditional release from, confinement within the Department and, in his or her discretion, to require payment of reasonable fees for such services, if the person is financially able to make the payment;
  4. To establish and maintain a register of individuals who ask to be notified of the parole interview or review of an inmate by the Parole Board. The register shall constitute a confidential record that shall only be disclosed to persons within the Department specifically designated by the Commissioner;
  5. To provide written notification of the date, time, and place of a parole interview or review of an inmate by the Parole Board to an individual who asks to be notified of the parole interview or review. At least 30 days prior to the date of the interview or review, the notice shall be sent by first class mail, or by another most appropriate method, to the last address provided to the Department by the individual. A copy of the notice shall be provided to the Parole Board prior to the interview or review. Failure of the Department to provide the notice or provide it in a timely manner shall not affect the validity of proceedings conducted by the Parole Board.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 148 (Adj. Sess.), § 56, eff. April 29, 1998; 2007, No. 179 (Adj. Sess.), § 7.

History

Amendments--2007 (Adj. Sess.). Subdiv. (1): Added the second and third sentences.

Amendments--1997 (Adj. Sess.). Made pronouns gender-neutral in subdivs. (2) and (3) and added subdivs. (4) and (5).

Cross References

Cross references. Arrest and confinement for alleged parole violation, see § 551 of this title.

§ 404. Repealed. 1997, No. 148 (Adj. Sess.), § 66, eff. April 29, 1998.

History

Former § 404, relating to parole agreements, was derived from 1971, No. 199 (Adj. Sess.), § 20.

Subchapter 2. Parole Board

§ 451. Creation of Board.

  1. A Parole Board of five members is created. The Governor, with the advice and consent of the Senate, shall appoint five regular members and two alternates for terms of three years in such a manner that not more than three terms shall expire annually. Initial terms may be less than three years. Each member and alternate shall hold office until a successor is appointed and qualified. The Governor shall designate the Board's chair. As far as practicable, the Governor shall appoint as members persons who have knowledge of and experience in correctional treatment, crime prevention, or human relations, and shall give consideration, as far as practicable, to geographic representation of the State. The Board shall select one of its members to serve as Vice Chair of the Board. If the Chair resigns or is otherwise permanently unable to serve on the Board, the Vice Chair shall serve as interim chair until the Governor designates a new chair pursuant to this section. The Chair or the executive director may assign alternates to serve on the Board in the absence of a regular member and such alternates shall have all the powers and authority of a regular member when so assigned.
  2. Three members of the Board shall constitute a quorum for the conduct of a meeting. Notwithstanding 1 V.S.A. § 172 , the concurrence of a majority of members present at a Parole Board meeting shall be necessary and sufficient for Board action.
  3. The Chair of the Parole Board shall be entitled to compensation in the amount of $20,500.00 annually, effective on the first pay period in fiscal year 2006, which shall be in lieu of any per diem otherwise authorized by law. If the Vice Chair assumes the duties of the Chair for a period in excess of 30 consecutive days, the compensation otherwise payable to the Chair during his or her absence shall be paid to the Vice Chair.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 43 , eff. April 6, 1973; 1983, No. 89 , § 1; 1997, No. 148 (Adj. Sess.), § 57, eff. April 29, 1998; 2005, No. 63 , § 11.

History

Amendments--2005 Subsec. (a): Added the sixth and seventh sentences.

Subsec. (c): Amended generally.

Amendments--1997 (Adj. Sess.). Subsec. (a): Amended generally.

Subsecs. (b) and (c): Added.

Amendments--1983. Rewrote the last sentence.

Amendments--1973. Section amended generally.

Prior law. 28 V.S.A. § 1021.

Cross References

Cross references. Compensation of parole board members, see § 1010 of Title 32.

ANNOTATIONS

Cited. In re Trivento, 131 Vt. 610, 312 A.2d 910 (1973); State v. Moquin, 138 Vt. 160, 411 A.2d 1355 (1980); LaFrance v. Rampone, 678 F. Supp. 72 (D. Vt. 1988).

§ 452. Official seal; records.

  1. The Board shall adopt an official seal of which the courts shall take judicial notice.
  2. The Board shall keep a record of its acts and shall notify each correctional facility of its decisions relating to persons confined in that facility.
  3. [Repealed.]

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 148 (Adj. Sess.), § 58, eff. April 29, 1998; 2011, No. 139 (Adj. Sess.), § 23, eff. May 14, 2012; 2017, No. 113 (Adj. Sess.), § 170.

History

Amendments--2017 (Adj. Sess.) Subsec. (b): Substituted "in that facility" for "therein" following "confined".

Amendments--2011 (Adj. Sess.). Deleted "; annual report" from the end of the section heading.

Subsec. (c): Repealed.

Amendments--1997 (Adj. Sess.). Deleted "meetings" following "seal" from the section heading.

Prior law. 28 V.S.A. § 1022.

§ 453. Advisory board for pardons.

On request of the Governor, the Board shall act as an advisory board to assist or act for him or her in investigating or hearing matters pertaining to pardons, and may make recommendations to him or her regarding such matters.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1023.

§ 454. Finality of Parole Board determinations.

The determinations of the Parole Board shall not be reviewable except as to compliance with the provisions of this chapter.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1022(a).

ANNOTATIONS

Cited. LaFrance v. Rampone, 678 F. Supp. 72 (D. Vt. 1988).

§ 455. Director.

  1. The position of Parole Board Director is created. The Director shall be appointed by the Governor after consultation with the Board.
  2. The Director shall serve for a term of four years commencing on March 1 and continuing until his or her successor is appointed.
  3. The Director shall be exempt from classified State service.
  4. The Secretary of Human Services, in consultation with the Parole Board and the Department of Human Resources, shall establish the minimum and preferred qualifications, duties, and compensation of the Director.

    Added 2005, No. 63 , § 14.

§ 456. Parole Board independence.

  1. The Parole Board shall be an independent and impartial body.
  2. In a pending parole revocation hearing, the Parole Board shall not be counseled by:
    1. Assistant Attorneys General; and
    2. any attorney employed by the Department of Corrections.
  3. If any attorney employed by the Department of Corrections or an Assistant Attorney General or the direct supervisor of an Assistant Attorney General who represents the Department of Corrections in parole revocation hearings provides training to the Parole Board members on the subject of parole revocation hearings, the Defender General shall be notified prior to the training and given the opportunity to participate.

    Added 2015, No. 137 (Adj. Sess.), § 1, eff. May 25, 2016.

Subchapter 3. Eligibility for Parole

§ 501. Eligibility for parole consideration.

An inmate who is serving a sentence of imprisonment who is not eligible for presumptive parole pursuant to section 501a of this title shall be eligible for parole consideration as follows:

  1. If the inmate's sentence has no minimum term or a zero minimum term, the inmate shall be eligible for parole consideration within 12 months after commitment to a correctional facility.
  2. If the inmate's sentence has a minimum term, the inmate shall be eligible for parole consideration after the inmate has served the minimum term of the sentence.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1983, No. 89 , § 2; 1993, No. 233 (Adj. Sess.), § 80, eff. June 21, 1994; 1997, No. 148 (Adj. Sess.), § 59, eff. April 29, 1998; 2001, No. 61 , § 85, eff. June 16, 2001; 2019, No. 148 (Adj. Sess.), § 3, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Intro. paragraph: Inserted "who is not eligible for presumptive parole pursuant to section 501a of this title".

Amendments--2001. Substituted "12 months" for "six months" in subdiv. (1) and deleted "less any reductions in term for good behavior" at the end of subdiv. (2).

Amendments--1997 (Adj. Sess.). Added "consideration" to the end of the section heading and rewrote the section.

Amendments--1993 (Adj. Sess.). Subsec. (d): Added.

Amendments--1983. Subsec. (a): Added the second sentence.

Subsec. (b): Amended generally.

Subsec. (c): Inserted "referred to in subsection (b)" following "inmate" in the first sentence and added the second and third sentences.

Prior law. 28 V.S.A. § 1051.

Cross References

Cross references. Confidentiality of pre-parole reports, see § 204 of this title.

Eligibility following reconfinement, see § 553 of this title.

Person convicted for unrelated second offense of murder in the first degree not eligible for parole, see 13 V.S.A. § 2303.

ANNOTATIONS

Analysis

1. Constitutional rights.

An inmate serving a sentence of life imprisonment with no minimum term of imprisonment does not, under this section and the rules and regulations of the Parole Board, have a legitimate expectancy of release on parole giving rise to a liberty interest entitled to due process protection. Berard v. Vermont Parole Board, 730 F.2d 71 (2d Cir. 1984).

2. Persons eligible.

Under the parole eligibility statute, an inmate with a sentence having no minimum term or a zero minimum term and a maximum of one year shall be eligible for parole within those twelve months; that eligibility could come at any time during the twelve month period. This section does not indicate any legislative intent to prevent inmates convicted of offenses with statutory maximums of one year from being eligible for parole. State v. Kenvin, 191 Vt. 30, 38 A.3d 26 (2011).

A defendant sentenced to life imprisonment is not prohibited from parole eligibility. State v. Battick, 133 Vt. 558, 349 A.2d 221 (1975).

Any right to benefit under this section is limited to persons placed in the custody of the Commissioner of Corrections. In re Trivento, 131 Vt. 610, 312 A.2d 910 (1973).

3. Claim stated .

Inmate's action based on violations of 28 V.S.A. §§ 501, 505, 703, and 907 was not dismissed for failure to state a claim because it was not barred by the doctrines of res judicata or collateral estoppel; the evidence showed that the claim that several State officials improperly classified the inmate as mentally ill had not been previously litigated in several prior State court actions. Rheaume v. King, - F. Supp. 2d - (D. Vt. Feb. 15, 2001).

Cited. In re Finnigan, 136 Vt. 183, 388 A.2d 28 (1978); St. Gelais v. Walton, 150 Vt. 245, 552 A.2d 782 (1988); State v. Grenier, 158 Vt. 153, 605 A.2d 853 (1992); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

Annotations From Former § 1051

1. Consecutive sentences.

If a prisoner has served his minimum term for a particular sentence, he is eligible to be considered for parole regardless of whether there is a consecutive sentence awaiting him. 1968-70 Op. Atty. Gen. 84.

§ 501a. Presumptive parole.

An inmate who is serving a sentence of imprisonment shall be eligible for presumptive release in accordance with subsection 502a(e) of this title at the expiration of the inmate's minimum or aggregate minimum term of imprisonment if the inmate:

  1. has acquired no new criminal conviction while incarcerated or on supervision for the current offense;
  2. has no outstanding warrants, detainers, commitments, or pending charges;
  3. is compliant with the required services and programming portion of the inmate's case plan during the period of incarceration if the inmate is incarcerated for less than 90 days or is compliant for the 90 days preceding the completion of the inmate's minimum term if the inmate is incarcerated for 90 days or more;
  4. is compliant with the conditions of supervision if the offender is supervised in the community on furlough during:
    1. the entire period of supervision if the term of supervision is less than 90 days; or
    2. the 90 days prior to the consideration of parole eligibility if the term of supervision is 90 days or more;
  5. has no major disciplinary rule violation or pending infractions during the period of incarceration if the inmate is incarcerated for less than 12 months or has no major disciplinary rule violations or pending infractions during the preceding 12 months if the inmate is incarcerated for 12 months or more;
  6. has not had parole revoked on the inmate's current sentence; and
  7. Subdivision (7) effective until January 1, 2023; see subdivision (7) effective January 1, 2023 set out below.  is not serving a sentence for committing a crime specified in 13 V.S.A. § 5301 .

    (7) Subdivision (7) effective January 1, 2023; see subdivision (7) effective until January 1, 2023 set out above. is not serving a sentence for committing a crime specified in 33 V.S.A. § 5204(a) .

    Added 2019, No. 148 (Adj. Sess.), § 4, eff. Jan. 1, 2021; amended 2019, No. 148 (Adj. Sess.), § 5, eff. Jan. 1, 2023.

History

Amendments--2019 (Adj. Sess.). Subdiv. (7): Act 148 substituted "33 V.S.A. § 5204(a)" for "13 V.S.A. § 5301".

Effective date of amendment to subdiv. (7). 2019, No. 148 (Adj. Sess.), § 25(b) provides that the amendment to subdiv. (7) of this section by 2019, No. 148 (Adj. Sess.), § 5 shall take effect on January 1, 2023.

§ 502. Parole interviews and reviews.

  1. The Board shall interview each inmate eligible for parole consideration under section 501 of this title before ordering the inmate released on parole. The Board shall consider all pertinent information regarding an inmate in order to determine the inmate's eligibility for parole. The Board may grant parole only after an inmate is interviewed in accordance with this section. The Parole Board may conduct the interview in person, by telephone or videoconference, or by any other method it deems appropriate.
  2. An initial interview of the inmate shall occur at least 30 days prior to the date when the inmate becomes eligible for parole consideration under section 501 of this title.
  3. An inmate eligible for parole consideration shall, subsequent to the initial interview provided for above, be reviewed and interviewed thereafter, as follows:
    1. the Board shall review the inmate's record once every 12 months;
    2. the Board shall conduct an interview of the inmate at the request of the Department; and
    3. upon written request of the inmate, the Board shall conduct an interview annually.
  4. The Board in its discretion may hear from attorneys or other persons with an interest in the case before the Board. A person presenting statements to the Board may be required to submit the statement in writing.
  5. Interviews and reviews shall be conducted in accordance with the rules and regulations established by the Board, which shall be consistent with this section.
  6. The Board, when formulating the conditions of a parole, shall take into consideration the emotional needs of the victim of an offender's crime plus the needs of the victim's family.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 148 (Adj. Sess.), § 60, eff. April 29, 1998; 2001, No. 61 , § 86, eff. June 16, 2001; 2019, No. 148 (Adj. Sess.), § 6, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Inserted "at least 30 days prior to the date".

Subsec. (c): Amended generally.

Subsec. (f): Deleted "may" following "Board".

Amendments--2001. Section amended generally.

Amendments--1997 (Adj. Sess.). Substituted "interviews and reviews" for "interview" in the section heading and rewrote the section.

Prior law. 28 V.S.A. §§ 1051, 1055.

ANNOTATIONS

Cited. LaFrance v. Rampone, 678 F. Supp. 72 (D. Vt. 1988).

§ 502a. Release on parole.

  1. Except as otherwise provided in subsection (d) of this section and section 501 of this title, no inmate serving a sentence with a minimum term shall be released on parole until the inmate has served the minimum term of the sentence, less any reductions for good behavior.
  2. An inmate who is not eligible for presumptive parole pursuant to section 501a of this title shall be released on parole by the written order of the Parole Board if the Board determines:
    1. the inmate is eligible for parole;
    2. there is a reasonable probability that the inmate can be released without detriment to the community or to the inmate; and
    3. the inmate is willing and capable of fulfilling the obligations of a law-abiding citizen.
  3. A parole under subsection (b) or (e) of this section shall be ordered only for the best interests of the community and of the inmate and shall not be regarded as an award of clemency, a reduction of sentence, or a conditional pardon.
  4. Notwithstanding subsection (a) or (e) of this section, or any other provision of law to the contrary, any inmate who is serving a sentence, including an inmate who has not yet served the minimum term of the sentence, who is diagnosed as having a terminal or serious medical condition so as to render the inmate unlikely to be physically capable of presenting a danger to society, may be released on medical parole to a hospital, hospice, other licensed inpatient facility, or suitable housing accommodation as specified by the Parole Board. Provided the inmate has authorized the release of his or her personal health information, the Department shall promptly notify the Parole Board upon receipt of medical information of an inmate's diagnosis of a terminal or serious medical condition. As used in this subsection, a "serious medical condition" does not mean a condition caused by noncompliance with a medical treatment plan.
    1. The Department shall identify each inmate meeting the presumptive parole eligibility criteria in section 501a of this title and refer each eligible inmate who does not meet the risk criteria set forth in subdivision (2) of this subsection to the Parole Board for an administrative review at least 60 days prior to the inmate's eligibility date. (e) (1)  The Department shall identify each inmate meeting the presumptive parole eligibility criteria in section 501a of this title and refer each eligible inmate who does not meet the risk criteria set forth in subdivision (2) of this subsection to the Parole Board for an administrative review at least 60 days prior to the inmate's eligibility date.
    2. The Department shall screen each inmate it identifies as eligible for presumptive parole for the risk criteria set forth in this subdivision. If the Department determines that, based on clear and convincing evidence, there is a reasonable probability that the inmate's release would result in a detriment to the community, or that the inmate is not willing and capable of fulfilling the obligations of parole, the Department shall, at least 60 days prior to the inmate's eligibility date, refer the inmate to the Parole Board for a parole hearing.
      1. Within 30 days of the inmate's eligibility date, the Parole Board shall conduct an administrative review of each inmate the Department identifies as eligible for presumptive release who does not meet the risk criteria set forth in subdivision (2) of this subsection. The Board may deny presumptive release and set a hearing if it determines, through its administrative review, that a victim or victims should have the opportunity to participate in a parole hearing. If the Board determines there is a victim or victims who should be notified, the Department shall notify the victim or victims, and the Board shall provide them with the opportunity to participate in a parole hearing. (3) (A) Within 30 days of the inmate's eligibility date, the Parole Board shall conduct an administrative review of each inmate the Department identifies as eligible for presumptive release who does not meet the risk criteria set forth in subdivision (2) of this subsection. The Board may deny presumptive release and set a hearing if it determines, through its administrative review, that a victim or victims should have the opportunity to participate in a parole hearing. If the Board determines there is a victim or victims who should be notified, the Department shall notify the victim or victims, and the Board shall provide them with the opportunity to participate in a parole hearing.
      2. The Parole Board shall conduct a parole hearing pursuant to section 502 of this title for each eligible inmate that the Department determines meets the risk criteria in subdivision (2) of this subsection.

        Added 1997, No. 148 (Adj. Sess.), § 61, eff. April 29, 1998; amended 2013, No. 96 (Adj. Sess.), § 187; 2017, No. 91 (Adj. Sess.), § 1; 2019, No. 148 (Adj. Sess.), § 7, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Subsec. (a): Substituted "Except as otherwise provided in subsection (d) of this section and section 501 of this title, no" for "No".

Subsec. (b): Inserted "who is not eligible for presumptive parole pursuant to section 501a of this title" in the introductory language.

Subsec. (c): Inserted "under subsection (b) or (e) of this section".

Subsec. (d): Inserted "or (e)" in the first sentence.

Subsec. (e): Added.

Amendments--2017 (Adj. Sess.). Subsec. (d): Amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (d): Substituted "having" for "suffering from" following "diagnosed as".

§ 502b. Terms and conditions of parole.

  1. When an inmate is paroled, the Parole Board shall establish terms and conditions of parole that it deems reasonably necessary to ensure that the inmate will lead a law-abiding life and that will assist the inmate to do so. Such terms and conditions shall be set forth in the parolee's parole agreement. Terms and conditions of parole shall be designed to protect the victim, potential victims, and the public, and to reduce the risk of reoffense.  Such conditions may include prohibiting the use of alcohol; prohibiting having contact with minors; prohibiting or limiting the use of a computer or other electronic devices; permitting a probation officer access to all computers or other digital or electronic media, mail covers, subscription services, and credit card statements; and if a probation officer has reasonable grounds to believe the offender has violated a parole condition, permitting a probation officer to monitor or examine the offender's activities, communications, and use of any computer or other digital or electronic device, including cell phone, smartphone, digital camera, digital video camera, digital music player or recorder, digital video player or recorder, personal digital assistant, portable electronic storage device, gaming system, or any other contemporary device capable of the storage of digital electronic communication or data storage or access to the Internet or other computer or digital network.
  2. The Parole Board may require a parolee as a condition of parole to participate, as a resident or nonresident, in programs at a treatment center for all or part of the period of parole, provided that the Commissioner certifies that adequate treatment facilities, personnel, and programs are available. If the Commissioner determines that the person's residence in the center or participation in its programs, or both, should be terminated because the person can derive no further significant benefits from such residence or participation, or both, or because his or her residence or participation adversely affects the rehabilitation of other residents or participants, he or she shall so notify the Board, which shall thereupon make such other provision with respect to the person as it deems appropriate.
  3. A person residing in and participating in programs at a treatment center shall abide by the rules and regulations of the center and may be required to pay such costs incident to residents as the Commissioner deems appropriate.

    Added 1997, No. 148 (Adj. Sess.), § 61, eff. April 29, 1998; 2009, No. 1 , § 47.

History

Amendments--2009. Subsec. (a): Added the third and fourth sentences.

§ 502c. Parole agreement.

  1. When an inmate is paroled, the Parole Board shall issue a parole agreement, which shall set forth the name of the inmate paroled, the crime the inmate was convicted of, the date and place of trial, the sentence, and the terms and conditions of the parole. A copy of the parole agreement shall be furnished to the parolee and the Commissioner.
  2. The parole agreement shall not become effective until it is signed by the inmate. The Parole Board may withdraw the granting of parole at any time before the parole agreement is signed by the inmate. After the parole agreement is signed by the parolee, parole can only be revoked in accordance with subchapter 4 of this chapter.
  3. A copy of the parole agreement shall be full authority for the Commissioner to exercise all supervision and control over the parolee prescribed by law, and shall be sufficient warrant for the detention of the parolee as provided in subdivision 403(2) of this title.

    Added 1997, No. 148 (Adj. Sess.), § 61, eff. April 29, 1998.

§ 503. Adoption of rules.

The Board may adopt such rules, consistent with the provisions of this chapter, as it considers proper or necessary regarding the eligibility of inmates for parole, the conduct of parole interviews and reviews, or the conditions to be applied to inmates released on parole and parole revocation.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 148 (Adj. Sess.), § 62, eff. April 29, 1998.

History

Amendments--1997 (Adj. Sess.). Added "and reviews" after "parole interviews".

Prior law. 28 V.S.A. § 1051.

Cross References

Cross references. Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

§ 504. Witnesses; production of records.

  1. The Board may issue subpoenas requiring the attendance of any witnesses and the production of any records, books, papers, and documents as it may consider necessary for investigation of the case of any person before it.  Subpoenas may be signed and oaths administered by any member of the Board.  Subpoenas so issued may be served by a parole or probation officer, or a law enforcement officer, in the same manner as similar process in the Criminal Division of the Superior Court.  Any Criminal Division of the Superior Court of the State, upon application of the Board, may in its discretion compel the attendance of witnesses and the production of evidence before the Board in the same manner as it may compel them to attend or be produced before the court.
  2. Any person who testifies falsely or fails to appear when subpoenaed, or fails or refuses to produce material under the subpoena, shall be subject to the same orders and penalties to which a person before a court is subject.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "criminal division of the superior court" for "district court" in two places.

Prior law. 28 V.S.A. § 1054.

§ 505. Cooperation of correctional facility officials.

  1. The Board shall adopt rules regarding and shall direct, control, and supervise the administration of a system of paroles from any appropriate correctional facility.
  2. Officials in charge of correctional facilities shall give to the Board, or its properly accredited representatives, access at all reasonable times to any inmate over whom the Board has jurisdiction under this chapter and provide the Board or its representatives facilities for communicating with and observing the inmate, and furnish to the Board such documents as the Board may require concerning the conduct and character of any inmate in their custody and any other facts considered by the Board pertinent in determining whether the inmate shall be paroled.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2001, No. 61 , § 87, eff. June 16, 2001; 2015, No. 23 , § 131.

History

Amendments--2015 Subsec. (a): Substituted "adopt rules" for "promulgate regulations" preceding "regarding".

Amendments--2001. Subsec. (b): Substituted "documents" for "reports" following "the board such".

Prior law. 28 V.S.A. §§ 1052, 1053.

ANNOTATIONS

1. Claim stated.

Inmate's action based on violations of 28 V.S.A. §§ 501, 505, 703, and 907 was not dismissed for failure to state a claim because it was not barred by the doctrines of res judicata or collateral estoppel; the evidence showed that the claim that several State officials improperly classified the inmate as mentally ill had not been previously litigated in several prior State court actions. Rheaume v. King, - F. Supp. 2d - (D. Vt. Feb. 15, 2001).

§ 506. Termination and discharge.

  1. If warranted by the conduct of the parolee and the ends of justice, the Board may terminate the period of parole supervision and discharge the parolee from parole supervision. Supervision of a parolee serving a life sentence may be terminated only after 15 years measured from the date of first confinement.
  2. The Board shall discharge the parolee at the expiration of the maximum term of his or her sentence.
  3. [Repealed.]

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2001, No. 134 (Adj. Sess.), § 7; 2003, No. 57 , § 11, eff. July 1, 2004.

History

Amendments--2003. Subsec. (c): Repealed.

Amendments--2001 (Adj. Sess.) Subsec. (a): Substituted "15" for "fifteen" in the second sentence.

Subsec. (b): Added "or her".

Subsec. (c): Added.

Expiration of 2003 amendment. 2003, No. 57 , § 16 provides for the repeal of Sec. 11 of that act which amended this section by deleting subsec. (c) on July 1, 2007.

ANNOTATIONS

Cited. State v. Battick, 133 Vt. 558, 349 A.2d 221 (1975); Miner v. Chater, 137 Vt. 330, 403 A.2d 274 (1979).

§ 507. Notification to victim and opportunity to testify.

  1. At least 30 days prior to a parole eligibility hearing, the victim of a listed crime as defined in 13 V.S.A. § 5301(7) , shall be notified as to the time and location of the hearing. Such notification may be waived by the victim in writing.
  2. At a parole eligibility hearing, unless waived by the victim of a listed crime as defined in 13 V.S.A. § 5301(7) , the inmate shall not be present when the victim testifies before the Parole Board.
  3. Parole Board proceedings shall be subject to the Vermont Open Meeting Law.
  4. As used in this section, "victim" means:
    1. a victim of the listed crime for which the Parole Board is determining the inmate's eligibility for parole; and
    2. a victim of a listed crime of which the inmate was convicted other than the listed crime for which the Parole Board is determining the inmate's eligibility for parole.

      Added 1995, No. 170 (Adj. Sess.), § 21, eff. Sept. 1, 1996; amended 1999, No. 4 , § 5; 2007, No. 174 (Adj. Sess.), § 16.

History

Amendments--2007 (Adj. Sess.). Subsec. (d): Added.

Amendments--1999. Substituted "13 V.S.A. § 5301(7)" for "section 13 of Title 13" in subsecs. (a) and (b).

Subchapter 4. Revocation of Parole

§ 551. Issuance of warrant; arrest without a warrant; confinement pending hearing; authority of correctional officers and law enforcement officers.

  1. Parole Board warrant.  The Board may issue a warrant for the arrest of a parolee, or may issue an order, to be served personally upon the parolee, requiring him or her to appear before the Board, if the Board has reason to believe that a violation of parole has occurred. The warrant shall authorize any law enforcement officers and any correctional officers to return the person to the custody of a correctional facility.
  2. Fugitive from justice.  A parolee for whose return a warrant has been issued by the Board, if it is found that a warrant cannot be served, shall be considered to be a fugitive from justice or to have fled from justice.
  3. Arrest of person on parole.  Any correctional officer designated by the Commissioner may arrest a parolee without a warrant if, in the judgment of the correctional officer, the person has violated a condition of his or her parole; or may deputize any other law enforcement officer to do so by giving him or her a written statement setting forth that the parolee has, in the judgment of the correctional officer, violated a condition or conditions of his or her parole. The written statement delivered with the person by the arresting officer to the supervising officer of the correctional facility to which the person is brought for detention shall be sufficient warrant for detaining him or her.
  4. No right of action.  Any parolee arrested and detained in accordance with the provisions of this chapter shall have no right of action against any law enforcement officer, correctional officer, employee of the Department of Corrections, or any other persons because of such arrest and detention.
  5. Detention pending hearing for parolee.  Pending a hearing on the merits upon any charge of violation, the parolee shall continue to be detained at a correctional facility. The Parole Board may authorize the parolee's release from detention in accordance with the procedures set forth in 13 V.S.A. § 7554 . For the purposes of this section, judicial officer, as defined in 13 V.S.A. § 7554 (f) , shall include the Chair of the Parole Board or his or her designee. There shall be no right to bail or release.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 205 (Adj. Sess.), § 1; 1997, No. 148 (Adj. Sess.), § 89, eff. April 29, 1998; 1997, No. 152 (Adj. Sess.), § 3.

History

Revision note. References to "section 7553a" of Title 13 in subsec. (e) changed to "section 7554" to conform references to renumbering of such section.

Amendments--1997 (Adj. Sess.). Act No. 152 added "authority of correctional officers and law enforcement officers" to the section heading, added the subsection headings, added "or her" following "him" throughout the section, and substituted "person" for "inmate" throughout the section.

Subsec. (a): Act No. 152 substituted "an order" for "a notice" in the first sentence and "and any correctional officers" for "named therein" in the second sentence, and deleted "from which he was released, or to any other suitable detention facility designated by the board" at the end of the subsec.

Subsec. (c): In the first sentence, Act No. 152 substituted "correctional officer" for "parole officer" twice and inserted "designated by the commissioner" and "if, in the judgment of the correctional officer, the person has violated a condition of his or her parole".

Subsec. (d): Act No. 152 substituted "any law enforcement officer, correctional officer, employee of the department of corrections" for "the parole officer."

Subsec. (e): Act No. 152 added "on the merits" in the first sentence, substituted "chair" for "chairman" in the second sentence, and added the final sentence.

Act No. 148, amending Act No. 152, added "or release" to the end of the subsec.

Amendments--1973 (Adj. Sess.). Subsec. (e): Amended generally.

Prior law. 28 V.S.A. § 1081.

Cross References

Cross references. Maximum period of detention for alleged parole violation, see § 403(2) of this title.

ANNOTATIONS

Cited. Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26 (1975).

§ 551a. Law enforcement powers of correctional officers; training requirements.

  1. The Commissioner of Corrections shall establish training requirements necessary for a correctional officer to be authorized to exercise the power to arrest a person on probation under section 301 of this title, to arrest a person serving supervised community sentence under section 363 of this title, or to arrest a person on parole under section 551 of this title. The required training shall include training in search and seizure, criminal law, authority to arrest, use of force, reporting and record keeping, and liability for actions and conduct.
  2. The Commissioner may also authorize and designate any correctional officer as defined in subdivision 3(10) of this title to become certified by the Vermont Criminal Justice Council as a law enforcement officer pursuant to the provisions of 20 V.S.A. chapter 151. The Commissioner and the Executive Director of the Vermont Criminal Justice Council shall develop curriculum subject to the approval of the Council. The Commissioner by Department policy may prescribe the use of those law enforcement powers consistent with the official duties and job descriptions of the correctional officer, and may direct that the correctional officer not carry any weapon while on duty. Any person hereby certified shall be sworn by the Commissioner.

    Added 1997, No. 152 (Adj. Sess.), § 6; amended 2013, No. 141 (Adj. Sess.), § 21, eff. July 1, 2015.

History

2020. In subsec. (b), substituted "Vermont Criminal Justice Council" for "Vermont Criminal Justice Training Council" twice in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

Amendments--2013 (Adj. Sess.). Subsec. (a): Deleted "but not be limited to" following "training shall include".

Subsec. (b): Substituted "Vermont Criminal Justice Training Council" for "criminal justice training council" following "certified by the", "20 V.S.A. chapter 151" for "of chapter 151 of Title 20" at the end of the first sentence, "Executive Director of the Vermont Criminal Justice Training Council" for "director of the training academy" preceding "shall develop", "Council" for "training council" at the end of the second sentence; and deleted "part-time" preceding "law enforcement officer".

§ 552. Notification of Board; hearing.

  1. Upon the arrest and detention of a parolee, the parole officer shall notify the Board immediately and shall submit in writing a report describing the alleged violation of a condition or conditions of the inmate's parole.
  2. Upon receipt of the notification, or upon an arrest by warrant in accordance with the provisions of section 551 of this title, the Board shall cause the inmate together with a parole officer to be brought before it promptly for a hearing regarding the alleged violation.  Parole officers may be represented by legal counsel, which shall be provided by the appropriate State's Attorney or the Attorney General upon request, at hearings of the Parole Board.
    1. The hearing shall be conducted in accordance with such rules and regulations as the Board may adopt.
    2. If the alleged violation is established by substantial evidence, the Board may continue or revoke the parole, or enter such other order as it determines to be necessary or desirable.
  3. In the event of the withdrawal of any warrant by the authority of the Board, or in the event that the Board at the hearing on the alleged violation finds that the parolee did not violate any condition of his or her parole, or the law, the parolee shall be credited with any time lost by the interruption of the running of his or her sentence.

    Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Analysis

1. Constitutional rights.

Due process requirement that a parolee be afforded the right to confront and cross-examine adverse witnesses at a parole revocation hearing guarantees the parolee an opportunity to test the credibility and veracity of testimony used against him. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

The mandates of due process and the standard of proof are substantially less rigid at a parole revocation hearing than at a criminal trial. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

2. Standard of proof.

The substantial evidence standard of 28 V.S.A. § 552(b)(2) requires that there be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; under this standard, a parolee may be found in violation of parole conditions even though the State cannot prove the violation by a preponderance of the evidence. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

The first factor to consider in determining the constitutionality of the standard of proof required to establish a parole violation is the parolee's interest in continued conditional liberty, which is at least as great as the interest of the prisoner in accurate fact-finding in a prison disciplinary proceeding and entails many of the core values of unqualified liberty, including, subject to conditions, the freedom to seek gainful employment and to be with family and friends. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

Applying any standard that calls for less than a preponderance of the evidence at the fact-finding stage of a parole-revocation proceeding invites error, allowing the Parole Board to revoke parole even where the evidence indicates that it is more likely than not that there has been no violation of conditions. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

At the fact-finding stage of a parole revocation proceeding, the government has an undeniably strong interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial but only if in fact he has failed to abide by the conditions of his parole; the government has no interest in revoking parole where the weight of evidence indicates there has been no parole violation. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

Imposing a preponderance-of-the-evidence standard to establish a parole revocation will present little if any administrative burden on the government as the parolee is entitled to an opportunity to be heard and to present witnesses, and has the right to confront and cross-examine witnesses, unless good cause is shown to deny confrontation, and it will require little if any change in the current procedure to require that the findings be based on a preponderance of the evidence rather than simply on substantial evidence. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

Imposing the preponderance-of-the-evidence standard on the State in the fact-finding stage of a parole revocation proceeding will greatly reduce the risk of erroneous parole violations while imposing minimal burden on the government. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

Unlike a criminal prosecution, a parole violation does not need to be established beyond a reasonable doubt. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

Baxter v. Vermont Parole Board (1985) 145 Vt. 644, 497 A.2d 362, overruled, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

3. Evidence.

Rule set forth in Baxter v. Vermont Parole Bd., 145 Vt. 644, 497 A.2d 362 (1985), that a parolee's failure to testify in the face of hearsay charges may supply the corroboration or substantial evidence needed to support a parole violation, is overruled; instead, reviewing court is to analyze the quality - the underlying reliability and probative value - of the hearsay, and evaluate the weight each item of hearsay should receive according to the item's truthfulness, reasonableness, and credibility. Watker v. Vermont Parole Board, 157 Vt. 72, 596 A.2d 1277 (1991).

Parole Board's decision finding plaintiff in violation of parole conditions was supported by substantial evidence, where State's hearsay evidence concerning plaintiff's alleged beating of cohabitant was credible and reliable, and plaintiff's live testimony was not. Watker v. Vermont Parole Board, 157 Vt. 72, 596 A.2d 1277 (1991).

Baxter v. Vermont Parole Board (1985) 145 Vt. 644, 497 A.2d 362, overruled, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

Substantial evidence, required by subdivision (b)(2) of this section to establish a parole violation, is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

Because a parole revocation hearing is not the same as a criminal prosecution, the process in a parole hearing is flexible and permits consideration of evidence such as letters, affidavits, and other material that would not be admissible in an adversary criminal trial. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

A conviction would be only one way in which the Parole Board could find that a parolee violated a condition of his parole by committing a new crime. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

To establish a parole violation, all that is required is that the evidence and facts reasonably demonstrate that the person's conduct has not been as good as required by the terms and conditions of the release. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

At parole revocation hearing, a police department incident report and a letter indicating that parolee had violated conditions of his parole, together with parolee's failure to rebut the allegations, constituted relevant evidence which a reasonable mind could accept as adequate to support the conclusion that parolee violated conditions of his parole. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

4. Review.

A parole revocation decision consists of two steps: first, there is a factual determination of whether the parolee has violated the conditions of parole and, if the Parole Board concludes that there has been a violation, the second step is to determine whether a revocation is warranted. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

While the first step in a parole revocation determination requires fact-finding, the second step involves predictive and discretionary decisionmaking. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318 (1995).

Provided there is substantial evidence to support the Parole Board's finding that a parolee has committed a new crime in violation of his parole agreement, that finding will be upheld even though it is not based on a conviction. Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), overruled on other grounds, Watker v. Vermont Parole Board (1991) 157 Vt. 72, 596 A.2d 1277.

§ 553. Ineligibility for future parole.

An inmate who has been re-confined following parole may be reparoled by the Board. No person having been found guilty of more than two violations of parole by the commission of any offense whose maximum term of imprisonment is more than two years or life or that may be punished by death shall be eligible for future parole during the balance of his or her original sentence.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 109 , § 11, eff. May 25, 1973.

History

Amendments--1973. Substituted "two" for "five" preceding "years" in the second sentence.

Prior law. 28 V.S.A. § 1081.

§ 554. Service of term for additional crime.

The Board may permit any parolee who commits a crime while on parole and who is convicted and sentenced therefor to serve the sentence concurrently with the term under which he or she is paroled.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 1082.

CHAPTER 9. ADMINISTRATION OF THE CORRECTIONAL FACILITIES

Sec.

Cross References

Cross references. Administration of facilities providing juvenile services, see § 1102 of this title.

§ 601. Powers and responsibilities of the supervising officer of each correctional facility.

The supervising officer of each facility shall be responsible for the efficient and humane maintenance and operation and for the security of the facility, subject to the supervisory authority conferred by law upon the Commissioner. Each supervising officer is charged with the following powers and responsibilities:

  1. To receive, retain in confinement, and to release, in accordance with law, inmates duly committed to the Department and transferred to the facility, or duly committed to the facility.
  2. To enforce the provisions of law and the regulations of the Department for the administration of the facility, the government of its officers, and the treatment, training, employment, care, discipline, and custody of the inmates.
  3. To take proper measures to protect the safety of the inmates and personnel of the facility.
  4. To take proper measures to prevent the escape of inmates and to effect their recapture.
  5. To maintain and improve the buildings, grounds, and appurtenances of the facility.
  6. To make recommendations concerning the appointment of professional, technical, skilled, and other subordinate officers and employees for the facility.
  7. To establish and administer rules, including rules for the operation of the facility, consistent with the provisions of this title and the general policies and regulations of the Department.
  8. To give reasonable notice of promulgated rules and regulations to inmates confined at the facility.
  9. To maintain and preserve records on the management and operation of the facility, including records concerning any industries and wage funds of inmates, and to report thereon to the Commissioner at such times as the Commissioner may require.
  10. To establish and maintain, in accordance with such rules and regulations as are established by the Commissioner, records for each inmate.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2009, No. 58 , § 20; 2015, No. 137 (Adj. Sess.), § 4, eff. May 25, 2016.

History

Amendments--2015 (Adj. Sess.). Subdiv. (10): Amended generally.

Amendments--2009 Subdiv. (10): Added the last two sentences.

CHAPTER 11. SUPERVISION OF ADULT INMATES AT THE CORRECTIONAL FACILITIES

Subchapter 1. Commitment, Transfer, and Discharge

§ 701. Commitment to the custody of the Commissioner.

  1. When a person is convicted of an offense and the court commits him or her to a term of imprisonment, the commitment shall be to the custody of the Commissioner.
  2. The Commissioner shall have the authority to designate the place of confinement where the sentence shall be served.
  3. Whenever in this title or in any other law reference is made to the sentencing or confinement of inmates to any correctional facility under authority of the Department, such reference shall be construed to mean sentencing or confinement to the custody of the Commissioner rather than to any particular facility of the Department.
  4. The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at a correctional facility.  If any such person shall be committed to a jail or other place of detention to await transportation to the place in which his or her sentence is to be served, his or her sentence shall commence to run from the date on which he or she is received at such jail or other place of detention.

    Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

1. Transfer of inmates.

Authority to enter into contract to transfer Vermont inmates to an out-of-state facility was well within the powers reasonably and necessarily implied by the fundamental obligation of the Commissioner of the Department of Corrections to maintain prison safety and order, and the Commissioner's express and unfettered statutory authority to designate, assign, and transfer inmates. Daye v. State, 171 Vt. 475, 769 A.2d 630 (2000).

Cited. Rebideau v. Moeykens, 132 Vt. 49, 312 A.2d 926 (1973); Hohman v. Hogan, 597 F.2d 490 (2d Cir. 1979).

§ 701a. Segregation of inmates with a serious functional impairment.

  1. The Commissioner shall adopt rules pursuant to 3 V.S.A. chapter 25 regarding the classification, treatment, and segregation of an inmate with a serious functional impairment as defined and identified under subchapter 6 of this chapter; provided that the length of stay in segregation for an inmate with a serious functional impairment:
    1. shall not exceed 15 days if the inmate is segregated for disciplinary reasons;
    2. shall not exceed 30 days if the inmate requested the segregation, except that the inmate may remain segregated for successive 30-day periods following assessment by a qualified mental health professional and approval of a physician for each extension; and
    3. shall not exceed 30 days if the inmate is segregated for any reason other than the reasons set forth in subdivision (1) or (2) of this subsection, except that the inmate may remain segregated for successive 30-day periods following a due process hearing for each extension, which shall include assessment by a qualified mental health professional and approval of a physician.
  2. As used in this section, "segregation" shall have the same meaning as in subdivision 3(12) of this title.
  3. On or before the 15th day of each month, the Department's Health Services Director shall provide to the Joint Legislative Justice Oversight Committee a report that, while protecting inmate confidentiality, lists each inmate who was in segregation during the preceding month by a unique indicator and identifies the reason the inmate was placed in segregation, the length of the inmate's stay in segregation, and whether the inmate has a serious functional impairment. The report shall also indicate any incident of self harm or attempted suicide by inmates in segregation. The Department shall ensure that a copy of the report is forwarded on a monthly basis to the Vermont Defender General and to the entity designated as Vermont's protection and advocacy system. At the request of the Committee, the Director shall also provide information about the nature of the functional impairments of inmates placed in segregation or services provided to these inmates. In addition, at least annually, the Department shall provide a report on all inmates placed in segregation who were receiving mental health services.

    Added 1995, No. 185 (Adj. Sess.), § 48, eff. May 22, 1996; amended 2001, No. 61 , § 82, eff. June 16, 2001; 2005, No. 177 (Adj. Sess.), § 4; 2009, No. 26 , § 1; 2017, No. 78 , § 4; 2019, No. 131 (Adj. Sess.), § 284.

History

Amendments--2019 (Adj. Sess.). Subdiv. (a)(2): Inserted "and" at the end the subdiv. text.

Subsec. (c): In the third sentence, inserted "on a monthly basis" and substituted "to the entity designated as Vermont's protection and advocacy system" for "the Executive Director of Vermont Protection and Advocacy, Inc. on a monthly basis".

Amendments--2017. Subsec. (b): Amended generally.

Amendments--2009 Section heading: Substituted "functional impairment" for "mental illness".

Subsec. (a): Substituted "functional impairment as defined and identified under subchapter 6 of this chapter" for "mental illness as defined in subdivision 906(1) of this title", and "functional impairment" for "mental illness" following "serious" in the introductory paragraph.

Subsec. (c): Substituted "functional impairment" for "mental illness, or is otherwise on the department's mental health roster, and, if so, the nature of the mental illness" in the first sentence, "department" for "committee chair" preceding "shall ensure" in the third sentence, and added the last two sentences.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--2001. Section amended generally.

§ 701b. Classification of persons or defendants.

  1. When a defendant or person in a civil or criminal action is sentenced to the custody of the Commissioner or committed to the Commissioner's custody pending a prosecution on a misdemeanor charge or for sentencing, the Commissioner or the Commissioner's designee shall within five days of sentencing or commitment, excluding weekends and holidays, classify the person to determine whether he or she shall be incarcerated, held at a community work camp, or furloughed. Failure to classify within the five-day period shall not create a private right of action against the State, its political subdivisions, or its employees.
  2. Notwithstanding 13 V.S.A. § 7554 , the Commissioner may place on furlough under provisions of section 808 of this title, a misdemeanor defendant when the Commissioner, based upon a completed classification, has determined that the defendant is likely to appear in court as directed. If the Commissioner places such a defendant on furlough, the Commissioner shall impose not only the conditions of release initially ordered by the judicial officer, but also such additional terms or conditions deemed necessary to ensure that the defendant will appear in court. The Commissioner shall supervise compliance with all such conditions imposed.

    Added 1995, No. 185 (Adj. Sess.), § 49, eff. May 22, 1996; 2009, No. 33 , § 50.

History

Amendments--2009 Subsec. (a): Deleted the last sentence.

§ 702. Transfer between facilities of the Department.

  1. The Commissioner may transfer any inmate committed to his or her custody between any of the correctional facilities except that the Commissioner shall not have the authority to transfer a child, as defined in this title, to any facility except in accordance with 33 V.S.A. § 5293 .
  2. The Commissioner shall have the authority to transfer a person under arrest and charged with any offense, or convicted but not yet sentenced, from the correctional facility at which the person is detained to any other facility if the Commissioner determines that the person cannot be kept properly or safely at the correctional facility at which he or she is detained. If the Commissioner determines that such person has manifested a mental illness requiring treatment, the Commissioner shall have the authority to initiate transfer proceedings pursuant to section 703 of this title.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1987, No. 182 (Adj. Sess.), § 5; 2013, No. 131 (Adj. Sess.), § 131, eff. May 20, 2014.

History

Revision note. Reference to "section 657a" in subsec. (a) changed to "section 5530" to conform to recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "33 V.S.A. § 5293" for "section 5530 of Title 33" at the end.

Amendments--1987 (Adj. Sess.). Subsec. (a): Inserted "or her" preceding "custody" and substituted "the commissioner" for "he" preceding "shall not have the" and "except in accordance with section 657a of Title 33" for "used primarily for the execution of sentences of persons convicted of an offense" following "to any facility".

ANNOTATIONS

1. Notice and hearing.

That defendant charged with escape was not given notice and a hearing prior to his transfer from one prison facility to another within the State did not make his custody in the facility to which he was transferred unlawful and his escape lawful. State v. Carlson, 133 Vt. 562, 349 A.2d 237 (1975).

Cited. Hohman v. Hogan, 597 F.2d 490 (2d Cir. 1979).

§ 703. Transfer to the Department of Mental Health.

  1. If it becomes necessary to transfer a person who is under the supervision of the Department of Mental Health, the transfer shall be accomplished in accordance with the provisions of part 8 of Title 18.
  2. When a person is so transferred, he or she shall be subject to the supervision of the Commissioner of Mental Health except that the time during which the person is in the custody of the Commissioner of Mental Health shall be computed as part of the term for which he or she was sentenced. He or she shall continue to be eligible for good behavior reductions pursuant to section 811 of this title, and he or she shall continue to be eligible for parole pursuant to chapter 7 of this title.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2007, No. 15 , § 22.

History

Amendments--2007. Section heading and subsec. (a): Pursuant to the general amendment in Act 15, § 22(b), substituted "department of mental health" for "department of developmental and mental health services".

Subsec. (b): Pursuant to the general amendment in Act 15, § 22(b), substituted "commissioner of mental health" for "commissioner of developmental and mental health services".

Amendments--1995 (Adj. Sess.) Substituted "department of developmental and mental health services" for "department of mental health and mental retardation" in the section heading and in subsec. (a) and "commissioner of developmental and mental health services" for "commissioner of mental health and mental retardation" in two places in the first sentence of subsec. (b).

Amendments--1989 (Adj. Sess.). Inserted "and mental retardation" following "mental health" wherever it appeared.

Cross References

Cross references. Services for inmates with serious functional impairment, see § 906 et seq. of this title.

ANNOTATIONS

Analysis

1. Purpose.

The manifest purpose of this section is to assure that before inmates are committed, they will benefit from the same safeguards afforded all citizens. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

2. Construction with other laws.

Family court had subject matter jurisdiction to hear and rule on commitment proceedings involving mentally retarded man, even though he had been found competent to face criminal charges of sexual abuse, since statutory language did not indicate that criminal charges and civil commitment were mutually exclusive and commitment proceedings were mandated. In re D.C., 159 Vt. 314, 618 A.2d 1325 (1992).

Since this section is more specific than section 706 of this title, governing transfers to the federal prison system, this section is the controlling authority when the two sections conflict. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

3. Procedure.

An inmate in a correctional facility may be involuntarily committed only in compliance with the procedures outlined in Title 18. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

The Commissioner of Corrections violated this section's limitation on his authority by transferring a prisoner to a federal prison under section 706 of this title where the sole purpose of the transfer was to obtain involuntary psychiatric care for the prisoner. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

*4. Classification as mentally ill.

Inmate's action based on violations of 28 V.S.A. §§ 501, 505, 703, and 907 was not dismissed for failure to state a claim because it was not barred by the doctrines of res judicata or collateral estoppel; the evidence showed that the claim that several State officials improperly classified the inmate as mentally ill had not been previously litigated in several prior State court actions. Rheaume v. King, - F. Supp. 2d - (D. Vt. Feb. 15, 2001).

§ 704. Disposition when person recovers.

When the Commissioner of Mental Health determines that a person whose sentence has not expired no longer requires to be under the supervision of the Department of Mental Health, the Commissioner shall return the person to the custody of the Commissioner in accordance with 18 V.S.A. chapter 189.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2007, No. 15 , § 22.

History

Amendments--2007. Pursuant to the general amendment in Act 15, § 22(b), substituted "commissioner of mental health" for "commissioner of developmental and mental health services" and "department of mental health" for "department of developmental and mental health services".

Amendments--1995 (Adj. Sess.) Substituted "commissioner of developmental and mental health services" for "commissioner of mental health and mental retardation" and "department of developmental and mental health services" for "department of mental health and mental retardation".

Amendments--1989 (Adj. Sess.). Inserted "and mental retardation" following "mental health" in two places.

§ 705. Hospitalization upon expiration of sentence.

If it is determined by the Commissioner of Mental Health that a person who has been transferred by the Commissioner to the Department of Mental Health is in need of further care and treatment after the expiration of his or her maximum sentence, the Commissioner of Mental Health shall petition the Criminal Division of the Superior Court for recommitment of the inmate to the custody of the Commissioner of Mental Health. This action by the Commissioner of Mental Health shall be initiated before the expiration of the maximum sentence.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 4; 1977, No. 145 (Adj. Sess.), § 6; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2007, No. 15 , § 22; 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Substituted "criminal division of the superior court" for "district court" in the first sentence.

Amendments--2007. Pursuant to the general amendment in Act 15, § 22(b), substituted "commissioner of mental health" for "commissioner of developmental and mental health services" and "department of mental health" for "department of developmental and mental health services" throughout the section.

Amendments--1995 (Adj. Sess.) Substituted "commissioner of developmental and mental health services" for "commissioner of mental health and mental retardation" wherever it appeared and "department of developmental and mental health services" for "department of mental health and mental retardation" in the first sentence.

Amendments--1989 (Adj. Sess.). Inserted "and mental retardation" following "mental health" wherever it appeared.

Amendments--1977 (Adj. Sess.). Substituted "district" for "probate" preceding "court" in the first sentence and added "of mental health" following "commissioner" in the second sentence.

Amendments--1973. Deleted "30 days" following "initiated" in the second sentence.

§ 706. Transfer to federal correctional facility.

  1. The Commissioner may enter into and execute a contract or contracts with the United States for the transfer of any inmate from any facility to a federal correctional facility when, in his or her opinion, the inmate needs particular treatment or special facilities available at the federal correctional facility; or, all in-state treatment and rehabilitative programs available for the inmate have been considered and found unsuitable; or, all in-state security and custody alternatives for the inmate have been considered and found unsuitable; or, the inmate voluntarily requests transfer.
  2. Notwithstanding any other provision of law, an inmate transferred to a federal correctional facility shall, unless otherwise agreed in a contract or contracts, be subject to the same law, rules, regulations, and procedures applicable to inmates committed for violations of laws of the United States, not inconsistent with the sentence imposed.  Such laws, rules, regulations, and procedures applicable to Vermont prisoners confined outside Vermont may include matters of discipline, classification, segregation, visiting, mail, clothing or dress, use of telephones, personal property, employment, work release, furlough, and transfer.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1975, No. 21 , § 1, eff. March 31, 1975.

History

2019. In subsec. (b), deleted "but are not limited to" following "may include" in accordance with 2013, No. 5 , § 4.

Amendments--1975. Section amended generally.

Cross References

Cross references. Federal government authorized to contract for custody of state offenders, see 18 U.S.C. § 5003.

Interstate Corrections Compact, see § 1601 et seq. of this title.

New England Interstate Corrections Compact, see § 1401 et seq. of this title.

ANNOTATIONS

Analysis

1. Constitutionality.

Transfer pursuant to this section violates no federal constitutional guarantee. Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977).

Transfer pursuant to this section did not constitute exile because the transfer was not for the purpose of depriving prisoner of claimed constitutional right to freely inhabit the State; such freedom was forfeited by sentence of incarceration, wherever served, and would be restored in consequence of release from confinement. Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977).

The solution of the State's correctional need for providing maximum security for certain of its prisoners upon closing of State's only maximum security prison provided for by this section does not justify a finding that involuntary out-of-state transfer of prisoner is either cruel or unusual punishment prohibited by the Eighth Amendment to the United States Constitution. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

Since the classifications created by this section are not patently arbitrary and bear a rational relationship to legitimate government interests of public safety, the welfare of prisoners, and the maintaining of security, safety, and order at correctional facilities, interests which, in the absence of a maximum security facility in the State, can be served by transferring prisoners requiring maximum security detention to federal facilities, this section does not on its face violate the Equal Protection Clause of the Fourteenth Amendment. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

Where differences in treatment between federal prisoners and Vermont prisoners were not shown to affect constitutionally protected rights, and the impairment, for prisoners transferred to federal facilities, of visitation of family and friends and the difficulties of access to Vermont counsel were problems not presenting constitutional barriers to the operation of this section's statutory design, it would not be found that this section was in violation of the Equal Protection Clause of the Fourteenth Amendment due to the differences in treatment. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

2. Purpose.

This section was enacted to respond to a critical inadequacy in Vermont's prison facilities. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

3. Construction.

The decision to transfer a prisoner from one facility to another, entrusted by this section to the discretion of the Commissioner of Corrections, is administrative, not judicial. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

Where the 1975 amendment of this section was designed to accommodate the closing of the State's only maximum security prison, a contingency that did not confront the Legislature in 1971 when it revised the State's correctional system, the remedial nature of this section entitled it to a liberal construction. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

4. Construction with other laws.

Since section 703 of this title, governing transfer of a prisoner for psychiatric care, is more specific than this section, section 703 is the controlling authority when the two sections conflict. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

Where the purpose of the transfer of a prisoner to a federal prison was to obtain involuntary psychiatric care for the prisoner, the procedural safeguards of section 703 of this title, dealing with transfers of prisoners to mental health care facilities, were triggered and the criteria in that section, rather than this section, governed the transfer. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

5. Reasons for transfer.

Commissioner's decision to transfer prisoner with medical problem being treated by Vermont specialist to out-of-state federal correctional facility was not arbitrary nor generated from capricious or impermissible reasons where the record disclosed that the Commissioner took pains to confirm that competent medical treatment would be afforded the prisoner in the federal system, that the hearing officer and finally the Commissioner gave appropriate consideration to retaining the prisoner in Vermont in the available facilities, and where the Commissioner's final decision was based on the lack of correctional facilities and rehabilitative programs for long term offenders, who for reasons of security and the nature of their offenses were required to serve their sentences in close custody. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

6. Procedure.

Transfers of inmates under this section are governed by broad criteria and the administrative hearing procedures for such transfers, developed to afford inmates due process protections, provide for notice and a hearing before the transfer, representation by lay counsel, and written notice of the decision of the Commissioner of Corrections. Goodemote v. Scripture, 140 Vt. 525, 440 A.2d 150 (1981).

State prisoner, considered for transfer to out-of-state federal correctional facility following closing of State's only maximum security prison, who appeared in person before Corrections Department classification committee and discussed alternatives, who upon notice of committee's recommendation of transfer appeared in person and with trained lay counsel of his own choosing before hearing officer of Department's transfer committee, who had full opportunity to present evidence and called witnesses who testified in his behalf, and who conceded that the hearing officer was fair, was afforded procedural safeguards to which he was entitled. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

7. Classification of transferred prisoners.

Classification of State offenders received into the federal prison system as "special offenders" imposes an unwarranted stigma which is not in keeping with the provisions of this section. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976).

Cited. Rebideau v. Stoneman, 575 F.2d 31 (2d Cir. 1978); Hohman v. Hogan, 458 F. Supp. 669 (D. Vt. 1978); Howe v. Civiletti, 480 F. Supp. 111 (D. Vt. 1979), affirmed, 625 F.2d 454 (2d Cir. 1980), 425 U.S. 473, 101 S. Ct. 2468, 69 L. Ed. 2d 171 (1981); In re Morse, 138 Vt. 327, 415 A.2d 232 (1980).

§ 707. Confinement of persons convicted by U.S. courts.

  1. The Department shall have the authority, on such terms and conditions as it may prescribe, to receive into custody any person ordered detained or convicted by any court of the United States.  Any person against whom such sentence is rendered, while he or she is confined at any such facility, shall be subject to the same rules and discipline to which other inmates are subjected.
  2. All payments received from the United States for the confinement of such persons referred to in subsection (a) of this section shall be made to the State Treasurer.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 205 (Adj. Sess.), § 2.

History

Amendments--1973 (Adj. Sess.). Subsec. (a): Inserted "ordered detained or" preceding "convicted" in the first sentence.

Prior law. 28 V.S.A. §§ 536, 537.

Cross References

Cross references. Federal prisoners in state institutions, see 18 U.S.C. § 4002.

Interstate Corrections Compact, see § 1601 et seq. of this title.

New England Interstate Corrections Compact, see § 1401 et seq. of this title.

§ 708. Discharge.

  1. An inmate shall be released from confinement at the expiration of his or her term of sentence less the time deducted for good behavior.
  2. When an inmate is released from a correctional facility, either on parole or upon final discharge from the custody of the Commissioner, he or she shall be returned any personal possessions taken from him or her upon his or her commitment, and he or she may be furnished with transportation to the place where he or she will reside, any earnings set aside for him or her in a wage fund or other program or fund and any additional sum of money as may be prescribed by the Commissioner to enable the inmate to meet his or her immediate needs.
  3. If an inmate's release date falls on a weekend or legal holiday, the inmate may be released at the discretion of the supervising officer on the next preceding day that is not a legal holiday or a weekend.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1979, No. 99 (Adj. Sess.), § 3.

History

Amendments--1979 (Adj. Sess.). Subsec. (a): Deleted "except as provided in section 709 of this chapter" from the beginning of the sentence.

Prior law. 28 V.S.A. §§ 257, 258.

Cross References

Cross references. Reduction of term for good behavior, see § 811 of this title.

ANNOTATIONS

Cited. In re Perry, 137 Vt. 168, 400 A.2d 1013 (1979); Miner v. Chater, 137 Vt. 330, 403 A.2d 274 (1979).

§ 709. Repealed. 1979, No. 99 (Adj. Sess.), § 2.

History

Former § 709, relating to parolee status of released inmates, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1973, No. 48 , § 5.

§ 710. Approval of residence.

  1. Before approving a residence for a sex offender who is being released from confinement or whom the court has released on a probationary sentence or an alternative sentence under community supervision by the Department, the Commissioner or the Commissioner's designee shall give careful consideration to the proximity of the residence to any risk group associated with the offender.
  2. For purposes of this section, "sex offender" shall have the same meaning as in 13 V.S.A. § 5401(10)(B) .

    Added 2005, No. 192 (Adj. Sess.), § 30, eff. May 26, 2006.

Subchapter 1A. Offender Reintegration

§ 721. Offender reintegration; State policy.

The Department shall establish an offender reintegration process that requires offenders to be held accountable to their victims and the community. This process shall provide opportunities for victims of crime and other members of the community to participate in reentry programs under section 2a of this title and to allow for victims and members of the communities to provide input to the Department as provided for in subsection 104(a) of this title. Such input shall include the nature of the planned supervision, the offender's work and education needs, the potential impact to the victim(s) of the offender's presence in the community, and the opportunities to make use of the offender's abilities within the community. An offender who participates in the reintegration process provided for in this subchapter may be placed in the community under the Department's supervision for the remainder of the sentence if the Department is satisfied that the offender is demonstrating progress in his or her reentry programs and that the offender does not present an unreasonable risk to his or her victims or to the community at large.

Added 2001, No. 61 , § 89; amended 2001, No. 142 (Adj. Sess.), § 170c, eff. June 16, 2002.

History

2019. In the third sentence, deleted "but not be limited to" following "include" in accordance with 2013, No. 5 , § 4.

Amendments--2001 (Adj. Sess.) Added "and to allow for victims and members of the communities to provide input to the department as provided for in subsection 104(a) of this title" at the end of the second sentence and added the third sentence.

§ 722. Definitions.

As used in this subchapter:

  1. "Conditional reentry" means the process by which a sentenced offender is released into a community for supervision while participating in programs that assist the reintegration process. The offender's ability to remain in the community under supervision is conditioned on the offender's progress in reentry programs.
  2. "Listed crime" means any offense identified in 13 V.S.A. § 5301(7) .
  3. "Total effective sentence" means the sentence imposed under 13 V.S.A. §§ 7031 and 7032 as calculated by the Department in the offender's records.
  4. "Unlisted crime" means any offense that is a crime under Vermont law, but is not identified in 13 V.S.A. § 5301(7) .

    Added 2001, No. 61 , § 89, eff. June 16, 2001.

ANNOTATIONS

Cited. In re Lafayette, 180 Vt. 610, 910 A.2d 807 (mem.) (July 26, 2006).

§ 723. Community supervision furlough.

  1. The Department may release from a correctional facility to participate in a reentry program while serving the remaining sentence in the community a person who:
    1. has served the minimum term of the person's total effective sentence;
    2. is ineligible for or refuses presumptive parole pursuant to section 501a of this title or has been returned or revoked to prison for a violation of conditions of parole, furlough, or probation; and
    3. agrees to comply with such conditions of supervision the Department, in its sole discretion, deems appropriate for that person's furlough.
  2. The offender's continued supervision in the community is conditioned on the offender's commitment to and satisfactory progress in his or her reentry program and on the offender's compliance with any terms and conditions identified by the Department.
  3. Prior to release under this section, the Department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan. The Department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release.

    Added 1997, No. 148 (Adj. Sess.), § 61, eff. April 29, 1998; amended 2013, No. 96 (Adj. Sess.), § 187; 2017, No. 91 (Adj. Sess.), § 1; 2019, No. 148 (Adj. Sess.), § 10, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Section heading: Substituted "Community supervision furlough" for "Conditional reentry".

Subsec. (a): Rewrote subsec.

Amendments--2007 (Adj. Sess.). Subsec. (c): Added.

§ 724. Terms and conditions of community supervision furlough.

  1. Authority of the Department.  The Department shall identify in the terms and conditions of community supervision furlough those programs necessary to reduce the offender's risk of reoffense and to promote the offender's accountability for progress in the reintegration process. The Department shall make all determinations of violations of conditions of community supervision furlough pursuant to this subchapter and any resulting change in status or termination of community supervision furlough status.
  2. 90-day interruption or revocation.  Any interruption of an offender's community supervision furlough after the Department has found a technical violation of furlough conditions shall trigger a Department Central Office case staffing review and Department notification to the Office of the Defender General if the interruption will be 90 days or longer.
  3. Appeal.  An offender whose furlough status is revoked or interrupted for 90 days or longer shall have the right to appeal the Department's determination to the Civil Division of the Superior Court in accordance with Rule 74 of the Vermont Rules of Civil Procedure. The appeal shall be based on a de novo review of the record. The appellant may offer testimony, and, in its discretion for good cause shown, the court may accept additional evidence to supplement the record. The appellant shall have the burden of proving by a preponderance of the evidence that the Department abused its discretion in imposing a furlough revocation or interruption for 90 days or longer pursuant to subsection (d) of this section.
  4. Technical violations.
    1. As used in this section, "technical violation" means a violation of conditions of furlough that does not constitute a new crime.
    2. It shall be abuse of the Department's discretion to revoke furlough or interrupt furlough status for 90 days or longer for a technical violation, unless:
      1. the offender's risk to reoffend can no longer be adequately controlled in the community, and no other method to control noncompliance is suitable; or
      2. the violation or pattern of violations indicate the offender poses a danger to others or to the community or poses a threat to abscond or escape from furlough.

        Added 2001, No. 61 , § 89, eff. June 16, 2001; amended 2019, No. 148 (Adj. Sess.), § 11, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Rewrote section.

§ 725. Parole hearing for offenders on community supervision furlough.

The Department shall submit to the Parole Board a recommendation relative to whether the offender should be released to parole pursuant to section 501 of this title when:

  1. an offender sentenced solely for the commission of one or more unlisted crimes has, in the sole discretion of the Department, successfully completed 90 days of community supervision furlough; or
  2. an offender sentenced for the commission of at least one or more listed crimes has, in the sole discretion of the Department, successfully completed 180 days of community supervision furlough.

    Added 2001, No. 61 , § 89, eff. June 16, 2001; amended 2019, No. 148 (Adj. Sess.), § 13, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Section amended generally.

§ 726. Reduction of sentence.

Each day an offender is supervised in a conditional reentry program shall be counted as one day served for the total effective sentence.

Added 2001, No. 61 , § 89, eff. June 16, 2001; amended 2005, No. 87 (Adj. Sess.), § 2, eff. Feb. 8, 2006.

History

Amendments--2005 (Adj. Sess.). Deleted the former second sentence.

Subchapter 2. Employment of Inmates

Cross References

Cross references. Punishment at hard labor, see § 64 of chapter II of Vermont Constitution.

§ 751. Repealed. 1999, No. 148 (Adj. Sess.), § 56, eff. May 24, 2000.

History

Former § 751, relating to general provisions governing offender work, was derived from 1971, No. 199 (Adj. Sess.), § 20; and amended by 1973, No. 205 (Adj. Sess.), § 3; 1977, No. 151 (Adj. Sess.); 1979, No. 104 (Adj. Sess.); 1987, No. 224 (Adj. Sess.); 1997, No. 152 (Adj. Sess.), § 10; 1999, No. 29 , § 57. See now § 751b of this title.

§ 751a. Definitions.

For purposes of this subchapter:

  1. "Assembled product" means a good produced by combining articles or components where none of the articles or components were fabricated, changed, or altered by the use of offender labor.
  2. "Offender service labor" means the use of offender labor for projects such as brush clearing, painting, repairing, and construction.
  3. "Offender work product" means a good fabricated by inmate labor in whole or in part from raw or prepared materials, so as to impart to those materials new forms, qualities, or properties.

    Added 1999, No. 148 (Adj. Sess.), § 57, eff. May 24, 2000.

§ 751b. General provisions governing offender work.

  1. To return value to communities, to assist victims of crime, to establish good habits of work and responsibility, to promote the vocational training of offenders, to pursue initiatives with private business to enhance offender employment opportunities, and to reduce the cost of operation of the Department of Corrections and of other State agencies, offenders may be employed in the production and delivery of goods, services, and foodstuffs to communities, to victims of crime, to correctional facilities, to other State agencies, and to other public or private entities authorized by this subchapter. To accomplish these purposes, the Commissioner may establish and maintain industries, farms, and institutional work programs at appropriate correctional facilities or other locations, plus community service work programs throughout the State.
  2. An offender shall not be required to engage in unreasonable labor or to perform any work for which he or she is declared unfit by a physician employed or retained by the Department.
  3. The Commissioner shall establish written guidelines governing the hours and conditions of offender work, and the rates of compensation of offenders for employment. Wage payments of offenders shall be set aside in a separate fund. The guidelines of the Department may provide for the making of deductions from wages of offenders to defray part or all of the cost of offender maintenance or payments to victims of crime. The guidelines may also provide for the setting aside by the Department of a portion of an offender's wages to enable the offender to contribute to the support of his or her dependents, if any, to make necessary purchases from a commissary, to purchase approved books, instruments, and instruction not supplied by a correctional facility, and to set aside sums to be paid to the offender upon release from the custody or supervision of the Commissioner. Any interest that accrues from these wages during the period of such custody of an offender shall be credited to any fund maintained by the correctional facility for the welfare of offenders.
  4. The labor, work product, or time of an offender may be sold, contracted, or hired out by the State only:
    1. To the federal government.
    2. To any state or political subdivision of a state, or to any nonprofit organization that is exempt from federal or state income taxation, subject to federal law, to the laws of the recipient state, and to the rules of the Department, provided that the Commissioner or designee may disapprove any future sales of offender produced goods or services to any nonprofit organization.
    3. To any private person or enterprise not involving the provision of the federally authorized Prison Industries Enhancement Program, provided that the Commissioner or designee shall first determine that the offender work product in question is not otherwise produced or available within the State.
    4. To charitable organizations where the offender work product is the handicraft of offenders and the Commissioner or designee has approved such sales in advance.
    5. To political subdivisions of the State, community organizations, private persons, or enterprises when the Governor has authorized the work of offenders as necessary and appropriate as a response to a civil emergency.
  5. Offender work programs managers shall seek to offset production, service, and related costs from product and service sales; however, this financial objective of offsetting the costs to the Department of servicing and supervising offender work programs shall not be pursued to the detriment of accomplishing the purposes of offender work programs set out in subsection (a) of this section or to the detriment of private businesses as safeguarded by section 761 of this title.
  6. The Department of Corrections shall, in any new initiative involving sales of offender work products, seek to use the provisions of the federally authorized Prison Industries Enhancement Program.
  7. [Repealed.]
  8. The Commissioner shall consult and collaborate with the Commissioner of Labor at least annually to seek funding and support for vocational training for offenders to help offenders achieve a successful transition from the custody of the Commissioner to private life. To the extent feasible, any vocational training program for offenders shall incorporate the professional training standards applicable to the construction and other trades, and industries, existing in the private sector.

    Added 1999, No. 148 (Adj. Sess.), § 58, eff. May 24, 2000; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2009, No. 33 , § 51; 2019, No. 128 (Adj. Sess.), § 10.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Substituted "An" for "No", inserted "not" following "shall", and substituted the first instance of "or" for ", and no offender shall be required".

Subdiv. (d)(2): Substituted ", provided that the Commissioner or designee" for "Five members of the Offender Work Programs Board at a scheduled and warned Board meeting", deleted "vote to" preceding "disapprove" and deleted "and such vote shall be binding on the Department" following "services to any nonprofit organization".

Subdiv. (d)(3): Substituted "Commissioner or designee" for "Offender Work Programs Board" in the first sentence and deleted the second sentence.

Subdiv. (d)(4): Inserted "or designee".

Subsec. (g): Repealed.

Amendments--2009 In subsec. (c), deleted the last sentence; in subdiv. (d)(2), deleted the former second sentence, and substituted "the offender work programs" for "such" preceding "board" in the present second sentence; and rewrote former subsecs. (f) through (i) as subsecs. (f) through (h).

Subsec. (i): Pursuant to the general amendment in Act 103, § 3, substituted "commissioner of labor" for "commissioner of employment and training".

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

§ 752. Offender Work Programs Special Fund.

  1. An Offender Work Programs Special Fund shall be maintained for the purpose of carrying out the provisions of section 751b of this title, which Fund shall include any appropriations made from time to time by the General Assembly and any sums obtained from the sale of goods and services produced by offenders pursuant to section 751b of this title. The Special Fund shall be managed pursuant to 32 V.S.A. chapter 7, subchapter 5.
  2. Any expenses incurred by offender work programs shall be defrayed by this Fund.
  3. All balances of the Fund remaining at the end of any fiscal year shall be carried forward and be made available for the succeeding fiscal year, and shall be kept as a special fund by the State Treasurer, except that any balance at the end of a fiscal year not needed to maintain offender work programs or for other purposes provided by section 751b or 761 of this title shall by September 1 of the subsequent fiscal year be transferred to the Victims' Compensation Fund established under 13 V.S.A. chapter 167.
  4. The Fund also may be used, at the discretion of the Commissioner, to further the raising, harvesting, and preservation of food.
  5. Purchases of materials for resale may be made from the Fund, but the Fund shall be maintained intact except for temporary depletion in making such purchases for resale.
  6. [Repealed.]

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1997, No. 152 (Adj. Sess.), § 11; 1999, No. 148 (Adj. Sess.), § 59, eff. May 24, 2000; 2009, No. 33 , § 83( l )(1); 2019, No. 128 (Adj. Sess.), § 11.

History

Amendments--2019 (Adj. Sess.). Subsec. (a): Substituted "General Assembly" for "State Legislature" in the first sentence.

Subsec. (b): Deleted "and the Offender Work Programs Board" following "work programs".

Amendments--2009 Subsec. (f): Repealed.

Amendments--1999 (Adj. Sess.). Subsec. (a): Substituted "section 751b" for "section 751" and for "subsections 751(e) and (f)" in the first sentence.

Subsec. (b): Inserted "and the offender work programs board" preceding "shall be".

Subsec. (c): Substituted "section 751b" for "section 751".

Subsec. (f): Added.

Amendments--1997 (Adj. Sess.). Substituted the section heading for "Maintenance of revolving fund"; in subsec. (a) substituted "An offender work programs special fund" for "A revolving fund" and substituted the language beginning "and services" for "produced by inmates pursuant to section 751(e) of this title"; in subsec. (b) substituted "offender work programs" for "the inmate employment program"; in subsec. (c) substituted "special" for "revolving" and added the exception.

Prior law. 28 V.S.A. §§ 204, 205.

§ 753. Work release program.

  1. The Commissioner shall have the authority to permit any inmate of any correctional facility to be gainfully employed outside the facility when the employment is determined to be in the best interests of the inmate and of the State, and when the inmate volunteers to participate in any work release program making provisions for gainful employment.  Inmates may be employed by the State or by public or private employers.  The rates of pay and other conditions of employment for an inmate released under this section shall be the same as those paid or required in the locality in which the work is performed.
  2. The Commissioner shall have the power and responsibility to make rules and regulations for the administration of any work release program authorized under this section.
  3. The Commissioner, before allowing any inmate to participate in a work release program, shall determine that the employment of the inmate will not cause the displacement of employed workers.
  4. A work release program may be extended to include the enrollment of an inmate in academic or vocational programs designed to improve the skills and abilities of the inmate.
  5. The time during which an inmate participates in a work release program outside a correctional facility shall be tabulated toward the serving of his or her sentence in the same manner as though the inmate had served such time at the facility. The inmate shall remain subject to the rules and regulations of the facility and be under the direction and control of the officers thereof during the period of his or her participation in the program.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 207.

Cross References

Cross references. Escape from work release, see 13 V.S.A. § 1501.

Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975); State v. Burclaff, 138 Vt. 461, 418 A.2d 38 (1980).

Annotations From Former § 207

1. Driving.

The Commissioner of Corrections may allow inmates to drive to and from work and may restrict the right as he deems appropriate. 1970-72 Op. Atty. Gen. 93.

§ 754. Powers and responsibilities of the Department regarding the work release program.

The Department is charged with the following powers and responsibilities:

  1. To supervise and consult with inmates participating in any work release program.
  2. To assist in locating available employment or vocational or other training opportunities for qualified work release participants and to effect placement of the participants under any work release program.
  3. To promote public understanding and acceptance of the work release program.
  4. To foster cooperation of all State agencies with the Department in the administration of the work release program.
  5. To provide cash advances in the nature of loans from the revolving fund established by section 752 of this title to participants in the work release program as are necessary to carry out the program.  The Commissioner is authorized to seek all available remedies in any court of this State or any court of competent jurisdiction to obtain a judgment in the event that an inmate receiving a cash advance in accordance with this section defaults in the repayment of the cash advance.

    Added 1971, No. 199 (Adj. Sess.), § 20.

§ 755. Disposition of earnings.

An inmate participating in a work release program shall cause to be given to the Commissioner the inmate's total earnings less payroll deductions authorized by law, including income taxes. Upon receipt of the earnings the Commissioner, to the extent reasonable, may:

  1. Deduct an amount determined to be equivalent to the cost of providing for the living expenses of the inmate.
  2. Cause to be paid, as are needed, any of the following.
    1. Any costs or fine imposed by the sentencing court.
    2. Any restitution included as part of the sentence of the inmate by the court.
    3. Any sum as is needed for the support of the dependents of the inmate, in which case the Commissioner shall notify the Commissioner for Children and Families of the support payments.
    4. Any loan which may have been issued to the inmate pursuant to subdivision 754(5) of this title.
    5. Any restitution or reparation included as part of a disciplinary proceeding for damage to State-owned property. Any monies collected under this subdivision shall be used to offset the cost of repair or replacement of the damaged property.
  3. Allow the inmate to draw from the balance of his or her earnings a sufficient sum to cover his or her incidental expenses.
  4. Credit to the account of the inmate the amount as remains after deductions are made in accordance with the provisions of this section, paying to the inmate the balance of his or her account upon his or her release.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1977, No. 264 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 57.

History

Revision note. Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

Amendments--2005 (Adj. Sess.). Subdiv. (2)(C): Substituted "for children and families" for "of prevention, assistance, transition, and health access".

Amendments--1999 (Adj. Sess.). Subdiv. (2)(C): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1977 (Adj. Sess.). Subdiv. (2)(E): Added.

Prior law. 28 V.S.A. § 207.

§ 756. Repealed. 1973, No. 109, § 12.

History

Former § 756, relating to failure to return from work release, was derived from 1971, No. 199 (Adj. Sess.), § 20. The subject matter is now covered by § 1501 of Title 13.

§ 757. Inmate not an agent of the State.

No inmate participating in any work release program, or engaged in work, industry, or employment at a correctional facility, or any community service or a public works activity or vocational training at a correctional facility or in the community while under the supervision of officers, employees, volunteers, or contracted persons of the Department of Corrections shall be deemed to be a "volunteer" or "State employee" for any purpose whatsoever.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1993, No. 54 , § 2.

History

Amendments--1993. Section amended generally.

§ 758. Release from a correctional facility to do work in the service of such facility or of the Department.

The supervising officer of any correctional facility may permit an inmate to leave the facility for the purpose of performing maintenance work or farm work, or any other work necessary, or appropriate for the maintenance, operations, or business of the facility or of the Department.

Added 1971, No. 199 (Adj. Sess.), § 20.

§ 759. Employment and furlough of an inmate during the pendency of prosecution.

  1. A person confined at a correctional facility during the pendency of a prosecution against him or her may request to be employed pursuant to the provisions of section 751 of this title.  Upon receipt of the request, the supervising officer may so employ the inmate, subject to all the rules and regulations of section 751.
  2. A person so confined may be allowed access to the work release and furlough programs pursuant to the provisions of sections 753 and 808 of this title with the consent of the prosecuting State's Attorney and the judge of the court in which the person is being prosecuted.

    Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited. In re Lampman, 135 Vt. 226, 373 A.2d 547 (1977).

§ 760. Compensation of offenders.

  1. The Commissioner shall, in consultation with the Department of Labor, promulgate rules establishing an injured offender compensation program for offenders or their dependents for injuries suffered while under supervision by the Department and arising out of and in the course of work, industry, or an employment program, at a correctional facility, or any community service or public works activity or vocational training directed by the Department of Corrections. The rules shall establish the compensation, medical and vocational benefits to which an injured offender may be entitled as well as procedures for resolving disputes. To the extent practicable and consistent with the requirements of the Department, compensation, medical and vocational benefits shall be comparable to what a similarly injured employee would receive under 21 V.S.A. chapter 9.
  2. The rights and remedies provided by this section and the rules adopted under authority of this section to an offender on account of a personal injury for which he or she is entitled to compensation under this section shall exclude all other rights and remedies of the offender, the offender's personal representation, dependents or next of kin, at common law, or otherwise on account of such injury.
  3. For purposes of this section, the Department of Corrections shall be the sole entity responsible for providing any compensation owed to an injured offender, without regard to the place of injury, and no claim for workers' compensation or other common law action may be brought against the industry, employment program, government or community service entity, or vocational training provider either supervising the offender or receiving the benefit of the offender's services.
  4. In no case shall compensation be made under subsection (a) of this section to any offender injured while participating in a work release program pursuant to section 753 of this title.
  5. Any compensation which is fixed in accordance with the rules and regulations promulgated by the Ccommissioner may be paid either in periodic installments or in lump sum. The compensation may be drawn from the revolving fund established by section 752 of this title, from any general fund maintained by the Department, or from any approved source.
  6. A claimant may seek review of the Department's decision relative to an award of compensation by petitioning a Superior Court under Rule 74 of the Vermont Rules of Civil Procedure.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1993, No. 54 , § 3; 1997, No. 148 (Adj. Sess.), § 69, eff. April 29, 1998; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006.

History

Amendments--2005 (Adj. Sess.). Subsec. (a): Pursuant to the general amendment in Act 103, § 3, substituted "department of labor" for "department of labor and industry".

Amendments--1997 (Adj. Sess.). In subsec. (a), rewrote the first sentence, added the second sentence, and substituted the language beginning "To the extent" and ending "vocational benefits" for "Such compensation" in the third sentence; added subsecs. (b), (c) and (f), redesignating subsecs. (b) and (c) as (d) and (e); in subsec. (d) substituted "offender" for "inmate"; and in subsec. (e) substituted "compensation may" for "compensation shall" and added "or from any approved source".

Amendments--1993. Deleted "injured during employment" following "inmates" in the section heading, substituted "work" for "any" preceding "industry", inserted "or an" preceding "employment program" and substituted "at a correctional facility, or any community service or public works activity or vocational training directed by the department of corrections" for "or in any work activity in connection with the maintenance or operation of the facility wherein such inmates are confined" thereafter in the first sentence and added the second sentence in subsec. (a), added a new subsec. (b) and redesignated former subsec. (b) as subsec. (c).

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

§ 761. Offender work programs expansion.

The Vermont Correctional Industries component of the offender work programs shall not expand into an existing market until the Commissioner or designee has evaluated the impact of expansion on private sector business.

Added 1997, No. 62 , § 44, eff. June 26, 1997; amended 1997, No. 152 (Adj. Sess.), § 12; 1999, No. 148 (Adj. Sess.), § 60, eff. May 24, 2000; 2009, No. 33 , § 52; 2009, No. 67 (Adj. Sess.), § 96, eff. Feb. 25, 2010; 2019, No. 128 (Adj. Sess.), § 9.

History

Amendments--2019 (Adj. Sess.). Substituted "expansion" for "board" in the section heading and rewrote the section.

Amendments--2009 (Adj. Sess.). Subdivs. (a)(3) and (b)(2): Repealed.

Amendments--2009 Substituted "committee" for "office" following "fiscal" in subdivs. (a)(3) and (b)(2).

Amendments--1999 (Adj. Sess.). Section amended generally.

Amendments--1997 (Adj. Sess.). Added the subsec. headings; in subsec. (a) substituted "commissioner" for "department" in the first sentence and added the second sentence in the introductory paragraph, added "except that the terms of the first members shall be as determined by the board" in subdiv. (1), and added subdivs. (4) and (5); redesignated former subsec. (b) as (c) and added new subsec. (b); and in subsec. (c) added "component of offender work programs".

Subchapter 3. Care of Inmates

Cross References

Cross references. Education program for incarcerated individuals generally, see § 120 of this title.

§ 801. Medical care of inmates.

  1. The Department shall provide health care for inmates in accordance with the prevailing medical standards.  When the provision of such care requires that the inmate be taken outside the boundaries of the correctional facility wherein the inmate is confined, the Department shall provide reasonable safeguards, when deemed necessary, for the custody of the inmate while he or she is confined at a medical facility.
    1. Upon admission to a correctional facility for a minimum of 14 consecutive days, each inmate shall be given a physical assessment unless extenuating circumstances exist. (b) (1)  Upon admission to a correctional facility for a minimum of 14 consecutive days, each inmate shall be given a physical assessment unless extenuating circumstances exist.
    2. Within 24 hours after admission to a correctional facility, each inmate shall be screened for substance use disorders as part of the initial and ongoing substance use screening and assessment process. This process includes screening and assessment for opioid use disorders.
  2. When there is reason to believe an inmate is in need of medical care, the officers and employees shall render emergency first aid and immediately secure additional medical care for the inmate in accordance with the standards set forth in subsection (a) of this section.  A correctional facility shall have on staff at all times at least one person trained in emergency first aid.
  3. The Department shall establish and maintain policies for the delivery of health care in accordance with the standards in subsection (a) of this section.
    1. Except as otherwise provided in this subsection, an inmate who is admitted to a correctional facility while under the medical care of a licensed physician, a licensed physician assistant, or a licensed advanced practice registered nurse and who is taking medication at the time of admission pursuant to a valid prescription as verified by the inmate's pharmacy of record, primary care provider, other licensed care provider, or as verified by the Vermont Prescription Monitoring System or other prescription monitoring or information system, including buprenorphine, methadone, or other medication prescribed in the course of medication-assisted treatment, shall be entitled to continue that medication and to be provided that medication by the Department pending an evaluation by a licensed physician, a licensed physician assistant, or a licensed advanced practice registered nurse. (e) (1)  Except as otherwise provided in this subsection, an inmate who is admitted to a correctional facility while under the medical care of a licensed physician, a licensed physician assistant, or a licensed advanced practice registered nurse and who is taking medication at the time of admission pursuant to a valid prescription as verified by the inmate's pharmacy of record, primary care provider, other licensed care provider, or as verified by the Vermont Prescription Monitoring System or other prescription monitoring or information system, including buprenorphine, methadone, or other medication prescribed in the course of medication-assisted treatment, shall be entitled to continue that medication and to be provided that medication by the Department pending an evaluation by a licensed physician, a licensed physician assistant, or a licensed advanced practice registered nurse.
    2. Notwithstanding subdivision (1) of this subsection, the Department may defer provision of a validly prescribed medication in accordance with this subsection if, in the clinical judgment of a licensed physician, a physician assistant, or an advanced practice registered nurse, it is not medically necessary to continue the medication at that time.
    3. The licensed practitioner who makes the clinical judgment to discontinue a medication shall cause the reason for the discontinuance to be entered into the inmate's medical record, specifically stating the reason for the discontinuance. The inmate shall be provided, both orally and in writing, with a specific explanation of the decision to discontinue the medication and with notice of the right to have his or her community-based prescriber notified of the decision. If the inmate provides signed authorization, the Department shall notify the community-based prescriber in writing of the decision to discontinue the medication.
    4. It is not the intent of the General Assembly that this subsection shall create a new or additional private right of action.
    5. As used in this subchapter:
      1. "Medically necessary" describes health care services that are appropriate in terms of type, amount, frequency, level, setting, and duration to the individual's diagnosis or condition, are informed by generally accepted medical or scientific evidence, and are consistent with generally accepted practice parameters. Such services shall be informed by the unique needs of each individual and each presenting situation, and shall include a determination that a service is needed to achieve proper growth and development or to prevent the onset or worsening of a health condition.
      2. "Medication-assisted treatment" shall have the same meaning as in 18 V.S.A. § 4750 .
  4. Any contract between the Department and a provider of physical or mental health services shall establish policies and procedures for continuation and provision of medication at the time of admission and thereafter, as determined by an appropriate evaluation, which will protect the mental and physical health of inmates.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1985, No. 139 (Adj. Sess.); 1987, No. 199 (Adj. Sess.), § 1; 2009, No. 157 (Adj. Sess.), § 6; 2013, No. 34 , § 30a; 2017, No. 153 (Adj. Sess.), § 1, eff. May 21, 2018; 2017, No. 176 (Adj. Sess.), § 3.

History

2013. Subsec. (e): Substituted "physician assistant" for "'physician's assistant" in two places, in accordance with 2013, No. 34 , § 30a.

2017 (Adj. Sess.) During the 2017 (Adj. Sess.), subsecs. (b) and (e) of this section were amended by two identical amendments in Act Nos. 153 and 176.

Amendments--2017 (Adj. Sess.). Subsec. (b): Act Nos. 153 and 176 redesignated former subsec. (b) as subdiv. (b)(1) and added subdiv. (b)(2).

Subsec. (e): Rewritten by Act Nos. 153 and 176.

Amendments--2009 (Adj. Sess.) Subsecs. (e) and (f): Added.

Amendments--1987 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Subsec. (b): Deleted "and shall be kept apart from the other inmates for a period of quarantine until he is known to be free from communicable disease" following "practicable".

Cross References

Cross references. Medical parole, see § 501 et seq. of this title.

ANNOTATIONS

Cited. Battick v. Stoneman, 421 F. Supp. 213 (D. Vt. 1976); Nash v. Wennar, 645 F. Supp. 238 (D. Vt. 1986).

§ 801a. Pregnant inmates.

  1. It shall be the policy of the State of Vermont to respect the unique health issues associated with a pregnant inmate. The Department of Corrections shall not routinely restrain pregnant inmates who are beyond their first trimester of pregnancy in the same manner as other inmates, recognizing that to do so might pose undue health risks for the mother and unborn child.
  2. The Commissioner of Corrections shall ensure that all reasonable and appropriate measures consistent with public safety are made to transport a pregnant inmate in a manner that:
    1. prevents physical and psychological trauma;
    2. respects the privacy of the individual; and
    3. represents the least restrictive means necessary for the safety of the inmate, medical and correctional personnel, and the public.
  3. Unless the inmate presents a substantial flight risk or other extraordinary circumstances dictate otherwise, mechanical restraints of any kind shall not be used on a pregnant inmate after she has been declared by an attending health care practitioner to be in active labor. The inmate shall remain unrestrained after delivery while in recovery at the hospital. If restraints are used while the inmate is in labor or in the hospital during recovery after delivery, the Commissioner of Corrections shall make written findings as to the reasons why mechanical restraints were necessary to prevent escape or to ensure the safety of the inmate, medical and correctional personnel, or the public.

    Added 2005, No. 180 (Adj. Sess.), § 4.

§ 801b. Medication-assisted treatment in correctional facilities.

  1. If an inmate receiving medication-assisted treatment prior to entering the correctional facility continues to receive medication prescribed in the course of medication-assisted treatment pursuant to section 801 of this title, the inmate shall be authorized to receive that medication for as long as medically necessary.
    1. If at any time an inmate screens positive as having an opioid use disorder, the inmate may elect to commence buprenorphine-specific medication-assisted treatment if it is deemed medically necessary by a provider authorized to prescribe buprenorphine. The inmate shall be authorized to receive the medication as soon as possible and for as long as medically necessary. (b) (1)  If at any time an inmate screens positive as having an opioid use disorder, the inmate may elect to commence buprenorphine-specific medication-assisted treatment if it is deemed medically necessary by a provider authorized to prescribe buprenorphine. The inmate shall be authorized to receive the medication as soon as possible and for as long as medically necessary.
    2. Nothing in this subsection shall prevent an inmate who commences medication-assisted treatment while in a correctional facility from transferring from buprenorphine to methadone if:
      1. methadone is deemed medically necessary by a provider authorized to prescribe methadone; and
      2. the inmate elects to commence methadone as recommended by a provider authorized to prescribe methadone.
  2. The licensed practitioner who makes the clinical judgment to discontinue a medication shall cause the reason for the discontinuance to be entered into the inmate's medical record, specifically stating the reason for the discontinuance. The inmate shall be provided, both orally and in writing, with a specific explanation of the decision to discontinue the medication and with notice of the right to have his or her community-based prescriber notified of the decision. If the inmate provides signed authorization, the Department shall notify the community-based prescriber in writing of the decision to discontinue the medication.
    1. As part of reentry planning, the Department shall commence medication-assisted treatment prior to an inmate's release if: (d) (1)  As part of reentry planning, the Department shall commence medication-assisted treatment prior to an inmate's release if:
      1. the inmate screens positive for an opioid use disorder;
      2. medication-assisted treatment is medically necessary; and
      3. the inmate elects to commence medication-assisted treatment.
    2. If medication-assisted treatment is indicated and despite best efforts induction is not possible prior to release, the Department shall ensure comprehensive care coordination with a community-based provider.
  3. Counseling or behavioral therapies shall be provided in conjunction with the use of medication for medication-assisted treatment as provided for in the Department of Health's "Rule Governing Medication-Assisted Therapy for Opioid Dependence for: (1) Office-Based Opioid Treatment Providers Prescribing Buprenorphine; and (2) Opioid Treatment Providers."

    Added 2017, No. 176 (Adj. Sess.), § 4; amended 2019, No. 72 , § E.338.2.

History

Amendments--2019. Subsec. (e): Amended generally.

§ 802. Correspondence of inmates.

  1. Any authorized employee of any correctional facility shall have the right to inspect all correspondence by or to inmates of the facility. The employee shall have the right to withhold and prevent the transmission of material intended to be sent through the mails by or to an inmate if the material is contraband as defined by the rules of the facility or constitutes a clear and present danger to the security of the facility.
  2. Notwithstanding the provisions of subsection (a) of this section, any correspondence from an inmate to any public official of the State or of the United States shall not be impeded in its transmission, nor shall it be inspected, opened, copied, duplicated, photographed, or examined in any way.
  3. An inmate shall not correspond through the mail with another inmate committed to the custody and supervision of the Department of Corrections, whether in the same facility or in a different facility, except as follows:
    1. To communicate with immediate family members who are inmates also in the custody and supervision of the Department of Corrections, subject to the prior approval of the superintendent or the superintendent's designee.
    2. To communicate with other inmates where the inmate's classification or treatment team deems the correspondence in the best interests of both parties.
    3. To communicate with another inmate regarding legal matters, so long as the superintendent or his or her designee knows the second inmate customarily offers legal advice to other inmates.
    4. To correspond with other inmates, so long as the correspondence has been approved by the superintendent or the superintendent's designee at his or her sole discretion.
  4. Negative contact list.
    1. Except as provided in subsection (b) of this section, an inmate incarcerated at a Department of Corrections facility shall not correspond through the mail with any individual on the Department of Corrections' negative contact list.
    2. An individual may be added to the negative contact list by notifying the Department of Corrections in writing that he or she does not wish to receive any correspondence through the mail from a particular inmate.
    3. A parent or authorized legal guardian of a minor may add the minor child to the negative contact list of any inmate who is not the parent of the child by notifying the Department of Corrections in writing that he or she does not wish the minor child to receive any correspondence through the mail from a particular inmate. If the inmate is a parent of the minor, the inmate shall have the right to have contact with the minor, unless the inmate is prohibited by court order from contacting the child.

      Added 1971, No. 199 (Adj. Sess.), § 20; amended 2007, No. 64 , § 3.

History

Amendments--2007. Subsecs. (c) and (d): Added.

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

§ 802a. Telephone use; debit and collect call systems.

  1. Upon admittance to a correctional facility, the inmate shall within 24 hours be allowed access to a telephone for outgoing telephone calls at the expense of the inmate.
  2. An inmate shall be allowed easy access in placing collect telephone calls upon admission to a correctional facility under reasonable conditions determined by the Commissioner, unless the inmate has been prohibited under provisions of section 853 of this title regarding punishment for a breach of the rules and regulations of the correctional facility in which an inmate is confined.
  3. When an inmate requests and receives a list of parties approved to receive telephone calls, the inmate shall be provided the option of using a debit or collect call system to place such calls. Under the debit system, the inmate shall pay for telephone service at the time of use, and the cost of such service will be automatically deducted from an account maintained by the inmate for that purpose.
  4. Any contract to provide telephone services to inmates in State correctional facilities shall be negotiated and awarded in a manner that provides for the lowest reasonable cost to inmates, to their families, and to others communicating with inmates.

    Added 1995, No. 185 (Adj. Sess.), § 50, eff. May 22, 1996; amended 2001, No. 61 , § 79, eff. June 16, 2001.

History

Amendments--2001. Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Plain language of the statute regarding telephone calls by inmates conclusively indicates that it gives inmates access to debit calling cards: the language "when an inmate requests and receives a list of parties approved to receive telephone calls, the inmate shall be provided the option of using a debit or collect call system to place such calls" makes clear that the inmate is provided the choice and that the choice is between "a debit or collect call system." Any inmate who falls within the scope of the statute must therefore be given the choice of using a debit calling card or calling collect. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

2. Debit cards.

Inmates had the statutory right to use debit cards for telephone calls when housed in an out-of-state private correctional facility not pursuant to the Interstate Corrections Compact. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

3. Standing.

Inmate's claim for mandamus relief was based on sufficient standing, as he claimed that he was personally harmed by the Department of Corrections' failure to engage in a competitive bidding process in order to provide telephone services to inmate as the lowest reasonable cost. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

4. Pleadings.

Inmate's claim for mandamus relief was sufficiently stated, as he established the elements to show that he had a clear legal right to the relief sought of having the Department of Corrections seek a competitive contract for telephone services to inmates. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

Inmate's allegation that Vermont law required the Department of Corrections (DOC) to use competitive bidding to contract for telephone services and that DOC violated this requirement by using a sole-source contract provided DOC with sufficient notice of the basis of his claim for purposes of surviving a dismissal motion. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

5. Sovereign immunity.

Inmate's claim that the Vermont Department of Corrections (DOC) and its Commissioner violated a statutory obligation to negotiate a contract for telephone services to inmates that provided for the lowest reasonable cost lacked merit as to his request for monetary damages, as the State did not waive its sovereign immunity because it was based upon the DOC's performance of a discretionary function and there was no private analog. Wool v. Menard, 207 Vt. 25, 185 A.3d 577 (Mar. 9, 2018).

§ 803. Exercise of religious beliefs.

  1. An inmate at any correctional facility shall have the right of free exercise of his or her religious beliefs, and shall have the right to receive visitations from a clergyperson or other representative of his or her faith in case of illness, provided that a request for the visitation is submitted to the supervising officer of the facility.  An inmate shall not be ordered or compelled to participate in any religious activities.
  2. Such exercise of religious beliefs as is permitted by subsection (a) of this section may be restricted only upon a determination by the Commissioner that the exercise would interfere unreasonably with the maintenance of discipline and security at the correctional facility.
  3. The supervising officer of any correctional facility shall have the authority to compensate any clergyperson selected by him or her to conduct visitations and carry out other services at the facility.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 214.

§ 804. Right of inmates to confer with counsel.

If an inmate in any facility expresses a desire to see and confer with a practicing attorney of the State, the supervising officer of the facility shall authorize, except in cases of imminent danger of injury to person or of escape, the admittance of the attorney to the facility. The inmate and his or her attorney shall have the right to confer alone and in private at the facility.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 801.

Cross References

Cross references. Legal services for persons in the custody of the Commissioner of Corrections, see 13 V.S.A. § 5253.

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

§ 805. Counsel for an inmate confined during the pendency of prosecution.

When a person is confined to a correctional facility during the pendency of a prosecution against him or her, such inmate shall be allowed conference with his or her counsel of record, which conferences may be held in the presence but not in the hearing of an officer or employee of the correctional facility.

Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

§ 806. Allowances to inmates.

It shall be within the discretion of the Commissioner to authorize the payment of allowances, from funds appropriated by the Legislature, to inmates of any correctional facility for the purpose of allowing the inmates to purchase personal articles and to meet other incidental expenses. The Commissioner shall have the authority to establish rules and regulations governing the issuance and administration of the allowances.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 16.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. § 801 et seq.

§ 807. Voting rights.

  1. Notwithstanding any other provision of law, a person who is convicted of a crime shall retain the right to vote by early voter absentee ballot in a primary or general election at the person's last voluntary residence during the term of the person's commitment under a sentence of confinement provided the person otherwise fulfills all voting requirements.
  2. No person sentenced to the custody of the Commissioner of Corrections may use the place of involuntary confinement as the person's place of residence for the purpose of qualifying to vote.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 172 (Adj. Sess.), § 12, eff. March 27, 1974; 2001, No. 6 , § 12(a), eff. April 10, 2001.

History

Amendments--2001. Subsec. (a): Inserted "early voter" preceding "absentee ballot".

Amendments--1973 (Adj. Sess.). Designated existing provisions of section as subsec. (a), inserted "at his last voluntary residence" following "election" in that subsec. and added subsec. (b).

Cross References

Cross references. Early or absentee voting, see 17 V.S.A. § 2531 et seq.

§ 808. Temporary furloughs granted to offenders.

  1. The Department may extend the limits of the place of confinement of an offender at any correctional facility if the offender agrees to comply with such conditions of supervision the Department, in its sole discretion, deems appropriate for that offender's furlough. The Department may authorize a temporary furlough for a defined period for any of the following reasons:
    1. to visit a critically ill relative;
    2. to attend the funeral of a relative;
    3. to obtain medical services;
    4. to contact prospective employers;
    5. to secure a suitable residence for use upon discharge.
  2. An offender granted a temporary furlough pursuant to this section may be accompanied by an employee of the Department, in the discretion of the Commissioner, during the period of the offender's furlough. The Department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.
  3. The extension of the limits of the place of confinement authorized by this section shall in no way be interpreted as a probation or parole of the offender, but shall constitute solely a permitted extension of the limits of the place of confinement for offenders committed to the custody of the Commissioner.
  4. When any enforcement officer, as defined in 23 V.S.A. § 4 ; employee of the Department; or correctional officer responsible for supervising an offender believes the offender is in violation of any verbal or written condition of the temporary furlough, the officer or employee may immediately lodge the offender at a correctional facility or orally or in writing deputize any law enforcement officer or agency to arrest and lodge the offender at such a facility. The officer or employee shall subsequently document the reason for taking such action.
  5. The Commissioner may place on medical furlough any offender who is serving a sentence, including an offender who has not yet served the minimum term of the sentence, who is diagnosed with a terminal or serious medical condition so as to render the offender unlikely to be physically capable of presenting a danger to society. The Commissioner shall develop a policy regarding the application for, standards for eligibility of, and supervision of persons on medical furlough. The offender may be released to a hospital, hospice, other licensed inpatient facility, or other housing accommodation deemed suitable by the Commissioner. As used in this subsection, a "serious medical condition" does not mean a condition caused by noncompliance with a medical treatment plan.
  6. [Repealed.]
  7. Subsection (b) of this section shall also apply to sections 808a and 808c of this title.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 6; 1973, No. 109 , § 12; 1973, No. 205 (Adj. Sess.), § 4; 1997, No. 152 (Adj. Sess.), § 9; 1999, No. 29 , § 55, eff. May 19, 1999; 2001, No. 61 , § 88, eff. June 16, 2001; 2001, No. 149 (Adj. Sess.), § 41, eff. June 27, 2002; 2005, No. 63 , § 6; 2007, No. 179 (Adj. Sess.), §§ 9, 10; 2009, No. 146 (Adj. Sess.), § D7; 2009, No. 157 (Adj. Sess.), §§ 7, 8; 2011, No. 41 , § 3; 2013, No. 96 (Adj. Sess.), § 189; 2015, No. 43 , § 3, eff. June 1, 2015; 2017, No. 91 (Adj. Sess.), § 2; 2019, No. 148 (Adj. Sess.), § 8, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Section heading: Inserted "Temporary" preceding "Furloughs".

Subsec. (a): In the second sentence of the intro. paragraph, inserted "a temporary" preceding "furlough" and "for a defined" following "furlough"; and deleted subdiv. (a)(6).

Subsec. (b): Inserted "a temporary" preceding "furlough" in the first sentence.

Subsec. (d): Inserted "temporary" preceding "furlough" in the first sentence.

Subsec. (f): Repealed.

Subsec. (g): Substituted "Subsection (b)" for "Subsections (b)-(f)".

Amendments--2017 (Adj. Sess.). Subsec. (e). Substituted "serious medical" for "debilitating" preceding "condition" and added the fourth sentence.

Amendments--2015. Subsec. (f): Deleted "of Corrections" following "the Department" in the first sentence and added the last sentence.

Amendments--2013 (Adj. Sess.). Subsec. (e): Substituted "with" for "as suffering from" following "diagnosed".

Amendments--2011. Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Act No. 157 rewrote subdiv. (7).

Subdiv. (a)(8)(A): Act No. 146 substituted "180 days" for "90 days" and "365 days" for "180 days".

Subsec. (h): Added by Act No. 157.

Amendments--2007 (Adj. Sess.). Subdivs. (a)(8)(E) and (F): Added.

Subsec. (b): Added a comma following "commissioner" in the first sentence and added the second sentence.

Amendments--2005 Deleted "offenders and" preceding "inmates" and "medical furlough" thereafter in the section heading; and added subdiv. (a)(8); deleted subsec. (e); and substituted "residential treatment facility" for "licensed treatment facility" in the third sentence of subsec. (g).

Amendments--2001 (Adj. Sess.). Subsec. (g): Added.

Amendments--2001. Subsec. (a): Amended the introductory paragraph and subdiv. (6) generally and added subdiv. (7).

Subsec. (d): Substituted "any enforcement officer, as defined in section 4 of Title 23, employee of the department, or" for "a" preceding "correctional officer" and inserted "or employee" following "the officer" in the first sentence and substituted "the officer or employee" for "the correctional officer" at the beginning of the second sentence.

Amendments--1999 Inserted "offenders and" preceding "inmates" in the section heading, and added subsec. (d).

Amendments--1997 (Adj. Sess.). Added "medical furlough" to the section heading and added subsec. (f).

Amendments--1973 (Adj. Sess.). Subsec. (e): Amended generally.

Amendments--1973. Act No. 48 redesignated former subsec. (d) as subsec. (e) and added a new subsec. (d).

Act No. 109 repealed subsec. (d).

Effect of reintegration furlough. 2005, No. 63 , § 7, provides: "It is the intent of the general assembly that granting the commissioner of corrections the ability to authorize reintegration furlough in Sec. 6 of this act shall have the effect of reducing the total number of Vermont offenders housed in out-of-state correctional facilities."

Cross References

Cross references. Escape from furlough, see § 1501 of Title 13.

Furlough during pendency of prosecution, see § 759 of this title.

ANNOTATIONS

Analysis

1. Construction .

Subdivision (a) of this section provided ample authority for Department of Corrections to place offenders on furlough and to attach binding conditions on that furlough; it did not require department to adopt rules and regulations to implement statutory purposes. State v. Parker, 170 Vt. 571, 744 A.2d 434 (mem.) (1999).

Statutes setting forth purposes of Department of Corrections and responsibilities of Commissioner did not compel conclusion that Vermont furlough statute required individual furlough assessments for each inmate prior to inmate's minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

Fact that parole determinations could be affected by whether prisoners had been granted furlough did not compel conclusion that Vermont furlough statute required Commissioner of Department of Corrections to provide an individual furlough assessment before each inmate reached his minimum release date. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

2. Termination of furlough.

Termination of inmate's furlough status and participation in sex-offender programs was not punishment. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

Termination of inmate's furlough status and participation in sex-offender programs was a matter within discretion of Commissioner of Corrections; Commissioner was not required to afford inmate due process hearing or explain why he believed plaintiff had failed to comply with furlough requirements. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

3. Constitutional rights.

If in fact the 2001 amendment to the furlough statute created a sufficient risk of eliminating an inmate's eligibility for parole, then the inmate's claim of an Ex Post Facto Clause violation might prevail. Whether the amendment here produced a significant risk of increasing the inmate's sentence could not be determined without the factual development precluded by trial court's granting of a motion to dismiss. Girouard v. Hofmann, 186 Vt. 153, 981 A.2d 419 (2009).

Assuming that plaintiff's extended furlough was a constitutionally protected right, the federal appellate court held that plaintiff received all the process that was due under the Fourteenth Amendment when prison officials revoked plaintiff's extended furlough even where prison officials failed to follow Vermont Department of Corrections' procedures. Holcomb v. Lykens, 337 F.3d 217 (2d Cir. 2003).

United States Constitution would not recognize a liberty interest in furlough status under existing Vermont law as a state-created liberty interest. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

No liberty in furlough status may be asserted directly under United States Constitution. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

4. Prisoners convicted of violent felonies.

Change in Department of Corrections policy, which would make prisoners convicted of violent felonies ineligible for furlough until expiration of their minimum sentences, did not violate Vermont's furlough statute since, by delaying individual furlough assessments for such prisoners until they had completed their minimum sentences, Commissioner was not exercising his discretion in a manner inconsistent with furlough statute or criteria contained therein. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410 (1999).

5. Sufficiency of documents.

Even though the term "order" was not technically used to describe the document governing defendant's furlough, it was executed in accordance with this section by the commissioner's authority; thus, there was sufficient evidence proving that the conditional reentry form and weekly schedules were an order for purposes of the escape statute. State v. Stanley, 182 Vt. 565, 933 A.2d 184 (mem.) (July 16, 2007).

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975); State v. Moquin, 138 Vt. 160, 411 A.2d 1355 (1980); State v. Lewis, 167 Vt. 533, 711 A.2d 669 (1998).

§ 808a. Treatment furlough.

  1. An offender may be sentenced to serve a term of imprisonment, but placed by a court on treatment furlough to participate in such programs administered by the Department in the community that reduce the offender's risk to reoffend or that provide reparation to the community in the form of supervised work activities.
  2. Provided the approval of the sentencing judge, if available, otherwise a Superior Court judge, is first obtained, the Department may place on treatment furlough an offender who has not yet served the minimum term of the sentence, who, in the Department's determination, needs residential treatment services not available in a correctional facility. The services may include treatment for substance abuse or personal violence or any other condition that the Department has determined should be addressed in order to reduce the offender's risk to reoffend or cause harm to himself or herself or to others in the facility. The offender shall be released only to a hospital or residential treatment facility that provides services to the general population. The State's share of the cost of placement in such a facility, net of any private or federal participation, shall be paid pursuant to memoranda of agreement between and within State agencies reflective of their shared responsibilities to maximize the efficient and effective use of State resources. In the event that a memorandum of agreement cannot be reached, the Secretary of Administration shall make a final determination as to the manner in which costs will be allocated.
  3. [Repealed.]

    Added 2011, No. 41 , § 3a; amended 2011, No. 41 , § 3c, eff. April 1, 2013; 2019, No. 148 (Adj. Sess.), § 9, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Inserted ", if available, otherwise a Superior Court judge," following "sentencing judge" in the first sentence.

Subsec. (c): Repealed.

Amendments--2011. Subdiv. (c)(1): Deleted the former second sentence.

§ 808b. Repealed. 2019, No. 148 (Adj. Sess.), § 24, eff. Jan. 1, 2021.

History

Former § 808b. Former § 808b, relating to home confinement furlough, was derived from 2011, No. 41 , § 3a, and amended by 2011, No. 41 , § 3c, and by 2015, No. 125 (Adj. Sess.), § 3.

§ 808c. Repealed. 2019, No. 148 (Adj. Sess.), § 24, eff. Jan. 1, 2021.

History

Former § 808c. Former § 808c, relating to reintegration furlough, was derived from 2011, No. 41 , § 3a and amended by 2011, No. 41 , § 3c.

§ 808d. Definition; eligible misdemeanor.

As used in section 808c of this title, "eligible misdemeanor" means a misdemeanor crime that is not one of the following crimes:

  1. Cruelty to animals involving death or torture as defined in 13 V.S.A. § 352(1) and (2).
  2. Simple assault as defined in 13 V.S.A. § 1023(a)(1) .
  3. Simple assault with a deadly weapon as defined in 13 V.S.A. § 1023(a)(2) .
  4. Simple assault of a law enforcement officer, firefighter, emergency medical personnel member, or health care worker while he or she is performing a lawful duty as defined in 13 V.S.A. § 1023(a)(1) .
  5. Reckless endangerment as defined in 13 V.S.A. § 1025 .
  6. Simple assault of a correctional officer as defined in 13 V.S.A. § 1028a(a)(1) .
  7. Simple assault of a correctional officer as defined in 13 V.S.A. § 1028a(b) .
  8. Violation of an abuse prevention order, first offense, as defined in 13 V.S.A. § 1030 .
  9. Stalking as defined in 13 V.S.A. § 1062 .
  10. Domestic assault as defined in 13 V.S.A. § 1042 .
  11. Cruelty to children over 10 years of age by one over 16 years of age as defined in 13 V.S.A. § 1304 .
  12. Cruelty by a person having custody of another as defined in 13 V.S.A. § 1305 .
  13. Abuse, neglect, or exploitation of a vulnerable adult as provided in 13 V.S.A. §§ 1376-1381 .
  14. Hate-motivated crime as defined in 13 V.S.A. § 1455 or burning of a cross or other religious symbol as defined in 13 V.S.A. § 1456 .
  15. Voyeurism as defined in 13 V.S.A. § 2605 .
  16. Prohibited acts as defined in 13 V.S.A. § 2632 .
  17. Obscenity as defined in 13 V.S.A. chapter 63.
  18. Possession of child pornography as defined in 13 V.S.A. § 2827 .
  19. Possession of a dangerous or deadly weapon in a school bus or school building as defined in 13 V.S.A. § 4004(a) .
  20. Possession of a dangerous or deadly weapon on school property with intent to injure as defined in 13 V.S.A. § 4004(b) .
  21. Possession of a firearm in court as defined in 13 V.S.A. § 4016(b)(1) .
  22. Possession of a dangerous or deadly weapon in court as defined in 13 V.S.A. § 4016(b)(2) .
  23. Failure to comply with the sex offender registry as defined in 13 V.S.A. § 5409 .
  24. Careless or negligent operation of a motor vehicle resulting in serious bodily injury or death as defined in 23 V.S.A. § 1091(b) .
  25. Driving under the influence of alcohol or drugs, second offense, as defined in 23 V.S.A. §§ 1201 and 1210(c).
  26. Boating under the influence of alcohol or drugs, second offense, as defined in 23 V.S.A. § 3323 .

    Added 2011, No. 41 , § 3a; amended 2019, No. 148 (Adj. Sess.), § 16, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Section heading: Deleted "Furlough at the Discretion of the Department" following "Misdemeanor".

Intro. paragraph: Substituted "As used in section 808c" for "For purposes of sections 808a-808c".

§ 808e. Absconding from furlough; warrant.

  1. The Commissioner of Corrections may issue a warrant for the arrest of a person who has absconded from furlough status in violation of subsection 808(a) or section 808a, 808b, or 808c of this title, requiring the person to be returned to a correctional facility. A law enforcement officer who is provided with a warrant issued pursuant to this section shall execute the warrant and return the person who has absconded from furlough to the Department of Corrections.
  2. A person for whom an arrest warrant is issued pursuant to this section shall not earn credit toward service of his or her sentence for any days that the warrant is outstanding.

    Added 2019, No. 77 , § 11, eff. June 19, 2019; amended 2019, No. 148 (Adj. Sess.), § 17, eff. Jan. 1, 2021.

History

Amendments--2019 (Adj. Sess.). Section amended generally.

§ 809. Pardons; application; notice; hearing; decision.

  1. When a person in confinement under sentence for a term of one year or more at any correctional facility applies to the Governor for a pardon, the application shall be in writing stating in substance the reasons for the application.  If the Governor, in his or her opinion, believes the reason stated in the application, if proved true, would constitute cause for granting the pardon, within reasonable time he or she shall designate a time and place for hearing the same.  He or she shall cause notice of the application and of the hearing to be given to the applicant and to the State's Attorney of the county in which the applicant was convicted and sentenced.
  2. At the hearing, the Governor may direct as to the method of procedure in all respects and may adjourn the hearing from time to time as their convenience requires.  When a decision has been made, it shall be communicated in writing to the applicant and to the State's Attorney, and, at the direction of the Governor, may be published in one or more newspapers published in the State.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Prior law. 28 V.S.A. § 901.

Cross References

Cross references. Power of Governor to grant pardons, see § 20 of Chapter II of Vermont Constitution.

ANNOTATIONS

1. Records.

Records of pardons granted by the Governor are not exceptions to the general law of public records giving citizens the right to inspection when not detrimental to the public interest. Doe v. Salmon, 135 Vt. 443, 378 A.2d 512 (1977).

§ 810. Conditional pardon; breach.

  1. In his or her discretion, the Governor may grant a pardon for offenses against the State upon the conditions as he or she judges proper.  Until a person to whom a conditional pardon is granted is excused from the performance of the conditions thereof, the Governor shall have all the authority, rights, and powers over and in relation to the person which he or she would have if he or she were surety in the case upon the recognizance of the person before conviction, and he or she shall be the sole and exclusive judge as to whether the conditions of the pardon have been violated.  If, in the judgment of the Governor, the conditions have been violated, he or she may cause the person to be apprehended and returned to his or her former condition of custody that execution of sentence may be complied with.
  2. Whenever a person is conditionally pardoned, the Commissioner shall be furnished with a copy of the conditional pardon signed by the Governor, setting forth the name of the person, the nature of the crime of which he or she was convicted, the date and place of trial and sentence, and the terms of the conditional pardon.  Such copy of the conditional pardon shall be full authority for the exercise by the Commissioner of all rights and powers over and in relation to the person prescribed by law and the order of the Governor and shall be a sufficient warrant for the detention of the person as provided in subsection (c) of this section.
  3. The Commissioner may detain for safekeeping at a correctional facility any person who has allegedly violated the terms of his or her conditional pardon as ordered by the Governor, pending a conference with the advisory Parole Board at its next regularly scheduled meeting, or the Governor, such period of detention not to exceed 30 days.  The nature of the alleged violation shall be considered by the advisory Parole Board and recommendation made to the Governor.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Revision note. At the end of subsec. (b), substituted "subsection (c) of this section" for "the section" to conform reference to V.S.A. style.

Annotations From Former § 904

1. Purpose.

Conditional pardons are of same nature as a parole, having for their object the reformation of convict. 1946-48 Op. Atty. Gen. 372.

2. Status of pardoned convict.

Conditional pardons granted pursuant to this section do not constitute a remission of guilt, and all the disabilities attending a conviction remain. 1946-48 Op. Atty. Gen. 372.

A conditionally pardoned convict is looked upon as being constantly in the custody of the Governor, who is regarded as his jailer. In re De Palo, 101 Vt. 510, 144 A. 678 (1929).

3. Release.

A conditional pardon is effective upon acceptance by the prisoner, and when accepted by him, he must be released. Reilly v. Dale, 113 Vt. 1, 28 A.2d 637 (1942).

The time a convict has been at large under a conditional pardon is not treated as time served under his sentence. In re De Palo, 101 Vt. 510, 144 A. 678 (1929).

4. Conditions.

A pardon could be made subject to any conditions, provided they were not unlawful, unreasonable, immoral, or impossible of performance; and when accepted by prisoner, especially when agreed to in writing, conditions became binding upon him. In re Charizio, 120 Vt. 208, 138 A.2d 430, cert. denied, 356 U.S. 962, 78 S. Ct. 1001, 2 L. Ed. 2d 1069 (1958).

A conditional pardon is a grant, which becomes valid only on acceptance of it by the convict, who can reject it, but who on accepting it takes it subject to all the conditions in the grant. In re Lorette, 126 Vt. 286, 228 A.2d 790 (1967).

Prisoner, accepting conditional pardon, voluntarily submits himself to conditions stated therein and is bound by them. In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961).

If a conditional pardon, accepted by a convict, contains a provision that upon noncompliance with the conditions the convict may be apprehended and remitted to his former custody upon the Governor's warrant, issued for that purpose, such provision is binding, and the Governor may proceed in accordance therewith. In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961).

A prisoner who accepts a conditional pardon voluntarily submits himself to the conditions stated in it and is bound by them and by the provisions of this section. In re Paquette, 112 Vt. 441, 27 A.2d 129 (1942); In re Charizio, 120 Vt. 208, 138 A.2d 430, cert. denied, 356 U.S. 962, 78 S. Ct. 1001, 2 L. Ed. 2d 1069 (1958).

5. Authority of Governor.

Under this section, the investigation, inquiry, and consideration as to the breach of condition of a pardon is the sole prerogative of the Governor. In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961); In re St. Amour, 127 Vt. 576, 255 A.2d 667 (1969).

Although under this section the Governor is the sole and exclusive judge as to whether the conditions of a pardon have been violated, he may not, in the absence of statutory authority, designate something as a breach of condition where no such condition is expressed in the pardon or recommit the pardoned convict where it concededly appears that the conditions have been complied with. In re Paquette, 112 Vt. 441, 27 A.2d 129 (1942).

Provision of this section placing the Governor in the position of a surety on recognizance was intended to be exercised only in connection with power to order arrest and remand to custody, when, in judgment of the Governor, a condition of the pardon has been violated. In re Paquette, 112 Vt. 441, 27 A.2d 129 (1942).

6. Recommitment .

Prisoner who accepted conditional pardon voluntarily submitted to conditions stated in it, and prisoner's recommitment to prison without hearing for breach of conditions of his conditional pardon was not a violation of his constitutional rights. In re Lorette, 126 Vt. 286, 228 A.2d 790 (1967).

A conditional pardon is an act of grace or favor upon the part of the State by its Governor, and may be revoked without notice to the convict and without giving him an opportunity to be heard. In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961); In re St. Amour, 127 Vt. 576, 255 A.2d 667 (1969).

A prisoner who has been conditionally pardoned under the provisions of this section is not entitled to notice and hearing as to his recommitment for breach of the conditions of his pardon. In re Paquette, 112 Vt. 441, 27 A.2d 129 (1942); In re Charizio, 120 Vt. 208, 138 A.2d 430, cert. denied, 356 U.S. 962, 78 S. Ct. 1001, 2 L. Ed. 2d 1069 (1958).

*7. Warrant.

Warrant issued under this section need not specify any particular condition adjudged by Governor to have been broken. In re Charizio, 120 Vt. 208, 138 A.2d 430 (1958), cert. denied, 356 U.S. 962, 78 S. Ct. 1001, 2 L. Ed. 2d 1069 (1958); In re Saucier, 122 Vt. 208, 167 A.2d 368 (1961).

After release under a conditional pardon, neither the Commissioner of Public Welfare nor the superintendent of the house of correction could recommit prisoner to prison or jail, in the absence of a warrant issued by the Governor for breach of conditions of the pardon. Reilly v. Dale, 113 Vt. 1, 28 A.2d 637 (1942).

*8. Effect.

Revocation of a conditional pardon does not create a new offense and penalty. In re St. Amour, 127 Vt. 576, 255 A.2d 667 (1969).

Time spent by prisoner in custody of Governor under conditional pardon was not time during which prisoner was serving his sentence, and upon prisoner's commitment to prison for violation of terms of conditional pardon he was liable to confinement for whatever part of original sentence remained unserved. In re Lorette, 126 Vt. 286, 228 A.2d 790 (1967).

§ 811. Work camps; reduction of term.

A reduction of up to 30 days in the minimum and maximum terms of confinement may be made in accordance with a policy established by the director of a work camp in which an inmate is confined for each month during which the inmate demonstrates, beyond the level normally expected, consistent program performance or meritorious work performance.

Added 2005, No. 63 , § 4.

History

Prior law. Former § 811, relating to reduction in term for good behavior, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1971, No. 258 (Adj. Sess.), § 18; 1973, No. 48 , § 7; 1993, No. 54 , § 4; 1993, No. 173 (Adj. Sess.), § 1; 1999, No. 127 (Adj. Sess.), § 1; 2001, No. 149 (Adj. Sess.), § 42.

Prospective award of good time. 2005, No. 87 (Adj. Sess.), § 1 provides: "Notwithstanding any provision of law to the contrary, each individual convicted of a crime committed on or before June 30, 2005 who was on conditional reentry or supervised community service on or after that date shall be entitled to the prospective award of good time pursuant to Sec. 2(b) of No. 63 of the Acts of 2005."

Reductions of term. 2005, No. 63 , § 2 provides:

"(a) Retrospective award. Each individual in the custody of the commissioner of corrections who is serving a term of incarceration on July 1, 2005 shall be awarded all reductions in the minimum and maximum terms to which that inmate is entitled as of the end of the day on June 30, 2005, consistent with those provisions of 28 V.S.A. § 811 that were in force when the inmate's crime was committed.

"(b) Prospective award. Notwithstanding any provision of law to the contrary, each individual in the custody of the commissioner of corrections who is serving a term of incarceration for a crime committed on or before June 30, 2005, shall, for purposes of calculating reductions in that inmate's term of confinement subsequent to June 30, 2005, prospectively be awarded, in total, all reductions in the minimum and maximum terms of confinement to which that inmate would potentially be entitled in the future under the system that was in place at the time his or her crime was committed; provided that this subsection shall not apply to reductions pursuant to 28 V.S.A. § 811(d) (work camps) as that subsection appears before July 1, 2005, which shall be awarded at the time the reductions are earned under the system that was in place at the time the crime was committed.

"(c) The department shall apply the provisions of subsections (a) and (b) of this section as appropriate to persons ultimately convicted of a crime committed before July 1, 2005 at the time of sentencing.

"(d) Pursuant to 13 V.S.A. § 5305, the department shall notify victims of the impact this section has on the minimum and maximum terms of incarceration for all pertinent inmates. The department shall also provide notice to each inmate regarding the impact this section has on that inmate's minimum and maximum terms of incarceration."

Work camp; good time. 2005, No. 63 , § 5 provides:

"(a) Except as provided in subsection (b) of this section, for each inmate serving a term of incarceration in a work camp on or after July 1, 2005 who has been convicted of a crime committed between July 1, 2000 and June 30, 2005, a reduction of up to 30 days in the minimum term of confinement and up to 15 days in the maximum term of confinement may be made in accordance with a policy established by the director of the work camp in which the inmate is confined for each month during which the inmate demonstrates, beyond the level normally expected, consistent high program performance or meritorious work performance.

"(b) Subsection (a) of this section shall not apply to any inmate who receives a prospective award, in total, of all reductions to which that inmate would potentially be entitled in the future pursuant to Sec. 2(b) of this act, who is subsequently transferred to a work camp."

ANNOTATIONS

1. Constitutionality.

Assuming, without deciding, that defendant had a vested right to 20 months' good-time credit, applying that credit under the applicable statute to his new maximum sentence (60 months) could not - and, as a constitutional matter, did not have to - reduce his maximum sentence below his new minimum (48 months). Thus, there was no due process violation. State v. Martin, 185 Vt. 286, 973 A.2d 56 (2009).

Annotations From Former § 811

Computation of good-time credit applicable to reduce criminal sentences did not implicate fundamental rights; therefore, upon equal protection challenge, discriminatory statutory classifications based on length of time served were reviewable on rational-basis test. Venman v. Patrissi, 156 Vt. 257, 590 A.2d 897 (1991).

Statutory requirement that inmate of correctional facility serve at least one month with good behavior before becoming eligible to earn good-time credit bore a rational relation to the purpose of promoting internal prison administration, and was therefore not violative of State or federal constitutional guarantees of equal protection of the laws. Venman v. Patrissi, 156 Vt. 257, 590 A.2d 897 (1991).

Provision of this section allowing reduction of term for good behavior to persons in prison under sentence, but not to persons committed to prison by order of the Commissioner of Mental Health, did not deny equal protection of law to defendant who was convicted of manslaughter, subsequently adjudged to be a psychopathic personality and confined nearly five years in custody of Commissioner of Mental Health until adjudged to be no longer a psychopathic personality, since the good time credit scheme as applied rationally promoted a legitimate State policy. Trivento v. Commissioner of Corrections, 135 Vt. 475, 380 A.2d 69 (1977).

2. Persons eligible.

The Commissioner of Corrections has no authority to award good time credit under this section to persons committed to the custody of the Commissioner of Mental Health, even if those persons are incarcerated in a correctional facility. Trivento v. Commissioner of Corrections, 135 Vt. 475, 380 A.2d 69 (1977).

Any right to benefit under this section is limited to persons placed in the custody of the Commissioner of Corrections. In re Trivento, 131 Vt. 610, 312 A.2d 910 (1973).

3. Computation.

Statute permitting reduction of criminal sentences through good-time credit, which by its terms allowed reduction in sentence by up to ten days for every month served without infraction of rules, did not apply to sentence of exactly thirty days. Venman v. Patrissi, 156 Vt. 257, 590 A.2d 897 (1991).

4. Retroactive application.

Denial of retroactive relief for class of prisoners was within trial court's discretion; court could properly consider financial and administrative burden of retroactively determining how much meritorious good time to award each inmate, in view of lack of applicable records. LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

5. Term-reduction system.

When the minimum and maximum terms of a prisoner's effective sentence are both derived from the same individual sentence, the effective sentence is the controlling sentence for the purpose of determining which term-reduction system to follow. In re Lafayette, 180 Vt. 610, 910 A.2d 807 (mem.) (July 26, 2006).

6. Construction with other law.

Defendant failed in his argument that his sentence was illegal because reducing the maximum sentence through good-time credits under this section made the effective maximum and minimum sentences the same, in violation of 13 V.S.A. § 7031. The sentence met statutory requirements since it was not fixed; even though the difference between the maximum and minimum terms was slight, the terms were not identical, and the effect of good time does not change this rule. State v. Kimmick, 181 Vt. 635, 928 A.2d 489 (mem.) (May 24, 2007).

Cited. In re Perry, 137 Vt. 168, 400 A.2d 1013 (1979); Ladd v. Gorczyk, 177 Vt. 551, 861 A.2d 1094 (mem.) (August 27, 2004).

§ 812. Denial of good time credit.

If during the term of confinement an inmate commits any offense or violates any rule or regulation of the facility wherein he or she is confined, all or a portion of his or her good behavior reductions for the month of the offense or violation may be denied. Denial or forfeiture of good behavior reductions shall be in accordance with the rules and regulations established by the Commissioner, and in accordance with the procedure established in section 852 of this title. In addition, a maximum of 10 days of any previously earned reductions may be forfeited for each subsequent offense or violation of any rule or regulation that occurs in the same month.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1977, No. 149 (Adj. Sess.), § 1.

History

Amendments--1977 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

§ 813. Restoration of reductions.

The supervising officer of any facility wherein an inmate is confined may restore, following the established procedures within the facility, any denied or forfeited good behavior reductions or such portions thereof as he or she deems proper upon approval of the Commissioner.

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1977, No. 149 (Adj. Sess.), § 2.

History

Amendments--1977 (Adj. Sess.). Inserted "following the established procedures within the facility" following "restore".

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

§ 814. Appointment of agent, attorney, or trustee for an inmate.

  1. A person confined under a sentence of imprisonment shall not be allowed to engage actively in the pursuit of business or other economic interests unless he or she is placed on work release pursuant to section 753 of this title.  The person shall, however, have the same right to appoint an agent, attorney-in-fact, or trustee to act in his or her own behalf with respect to his or her property or economic interests as if he or she were not confined.
  2. Upon the application of a person confined or about to be confined under a sentence of imprisonment, the Probate Division of the Superior Court within the jurisdiction of which the inmate resided at the time of sentence or where the sentence was imposed may appoint a trustee to safeguard his or her property and economic interests during the period of his or her commitment.  The trustee shall have such power and authority as the court designates in the order of appointment but, unless the order otherwise provides, shall have all the power and authority conferred by a general power of attorney.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "probate division of the superior court" for "probate court" in the first sentence.

§ 815. Development of guidelines; visitation and recreation.

  1. Those sheriffs who administer jails or county lock-ups shall provide all inmates reasonable visitation and recreation opportunities.
  2. The Commissioner, in cooperation with those sheriffs who administer jails or county lock-ups, shall develop guidelines for operation of those facilities, including the provision of inmates with visitation and recreation.

    Added 1993, No. 233 (Adj. Sess.), § 86, eff. June 21, 1994.

History

Offender contact visits. 2013, No. 163 (Adj. Sess.), § 4 provides: "The Commissioner of Corrections shall update the Joint Legislative Corrections Oversight Committee on a process for permitting offenders to earn contact visits if the contact privilege was taken away."

§ 816. Inmate Recreation Fund.

The Department shall accept monies generated by commissions on telephone services, commissary sales, and sales of approved items not available on commissary by the Department to inmates at its correctional facilities and shall establish with such monies an inmate recreation special fund. The fund shall be used to provide postage to inmates in a manner consistent with Department policy. The fund may be used for costs associated with the oversight and accounting of inmate cash accounts. The fund may be used, at the discretion of the Commissioner, to hire persons or purchase services, equipment, and goods to establish or enhance recreation activities for inmates confined in any of the Department's facilities, and for voluntary inmate contributions that promote the restoration of crime victims or communities. The inmates, through a process established by the inmate recreation fund committee, may also choose to create a loan fund, the operation of which shall be governed by rules adopted pursuant to 3 V.S.A. chapter 25, from which offenders may borrow in order to help them obtain housing upon release from incarceration.

Added 1997, No. 155 (Adj. Sess.), § 17; amended 1999, No. 152 (Adj. Sess.), § 102a; 2001, No. 61 , § 80, eff. July 1, 2002; 2001, No. 61 , § 81, eff. July 1, 2005; 2001, No. 142 (Adj. Sess.), § 172; 2003, No. 66 , § 169; 2005, No. 71 , § 145; 2005, No. 215 (Adj. Sess.), § 161a, eff. May 31, 2006.

History

Amendments--2005 (Adj. Sess.). Substituted "sales of approved items not available on commissary by the department to inmates" for "sales of vended items" in the first sentence.

Amendments--2005 Added the third sentence.

Amendments--2003. Added the present second and fourth sentences.

Amendments--2001 (Adj. Sess.). 2001, No. 142 (Adj. Sess.), § 172 effectively repealed the amendments by §§ 80 and 81 of No. 61 of the Acts of 2001, restoring this section to the version that existed prior to those amendments.

Amendments--2001. No. 61, § 80, designated existing provisions as subsec. (a) and added subsec. (b).

Amendments--1999 (Adj. Sess.) Added "and for voluntary inmate contributions that promote the restoration of crime victims or communities" at the end of the second sentence.

§ 817. Creation of work camps; intent.

It is the intent of the General Assembly that the creation of one or more new work camps in fiscal year 2006 and after will help alleviate overcrowded conditions in the State's correctional facilities and permit Vermonters housed in out-of-state facilities to be brought home to Vermont. The General Assembly specifically does not intend the creation of new work camps to result in an increase in the total number of Vermont offenders sentenced to incarceration. Therefore, specific plans and programs developed by the Department of Corrections shall restrict placement in new work camps to those offenders who have been convicted of a nonviolent offense and who have served a portion of their current sentence within a correctional facility. No court shall impose a sentence of imprisonment to be served initially or solely within the new facility.

Added 2005, No. 147 (Adj. Sess.), § 59, eff. May 15, 2006.

§ 818. Earned time; reduction of term.

  1. On or before September 1, 2020, the Department of Corrections shall file a proposed rule pursuant to 3 V.S.A. chapter 25 implementing an earned time program to become effective on January 1, 2021. The Commissioner shall adopt rules to carry out the provisions of this section as an emergency rule and concurrently propose them as a permanent rule. The emergency rule shall be deemed to meet the standard for the adoption of emergency rules pursuant to 3 V.S.A. § 844(a) .
  2. The earned time program implemented pursuant to this section shall comply with the following standards:
    1. The program shall be available for all sentenced offenders, including furloughed offenders, provided that the program shall not be available to offenders on probation or parole, to offenders eligible for a reduction of term pursuant to section 811 of this title, to offenders sentenced to serve an interrupted sentence, or to offenders sentenced to life without parole. Offenders currently serving a sentence shall be eligible to begin earning a reduction in term when the earned time program becomes effective. Notwithstanding this subdivision (1), when an offender has been convicted of a disqualifying offense, the offender's ability to participate and earn time in the program shall be determined pursuant to subdivision (5) of this subsection.
    2. Offenders shall earn a reduction of seven days in the minimum and maximum sentence for each month during which the offender:
      1. is not adjudicated of a major disciplinary rule violation; and
      2. is not reincarcerated from the community for a violation of release conditions, provided that an offender who loses a residence for a reason other than fault on the part of the offender shall not be deemed reincarcerated under this subdivision.
    3. An offender who receives post-adjudication treatment in a residential setting for a substance use disorder shall earn a reduction of one day in the minimum and maximum sentence for each day that the offender receives the inpatient treatment. While a person is in residential substance abuse treatment, he or she shall not be eligible for earned time except as provided in this subsection.
    4. The Department shall:
      1. ensure that all victims of record are notified of the earned time program at its outset and made aware of the option to receive notifications from the Department pursuant to this subdivision;
      2. provide timely notice not less frequently than every 90 days to the offender any time the offender receives a reduction in his or her term of supervision pursuant to this section;
      3. maintain a system that documents and records all such reductions in each offender's permanent record; and
      4. record any reduction in an offender's term of supervision pursuant to this section on a monthly basis and ensure that victims who want information regarding changes in scheduled release dates have access to such information.
    5. Notwithstanding 1 V.S.A. § 214 , an offender who was serving a sentence for a disqualifying offense on January 1, 2021 shall not earn any earned time sentence reductions under this section after the effective date of this act. This subdivision (5) shall not be construed to limit or affect earned time that an offender has earned on or before the effective date of this act.
  3. As used in this section:
    1. "Disqualifying offense" means:
      1. murder in violation of 13 V.S.A. § 2301 ;
      2. voluntary manslaughter in violation of 13 V.S.A. § 2304 ;
      3. kidnapping in violation of 13 V.S.A. § 2405 ;
      4. lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602 , provided that the offense shall not be considered a disqualifying offense if the offender is under 18 years of age, the child is at least 12 years of age, and the conduct is consensual;
      5. sexual assault in violation of 13 V.S.A. § 3252(a) or (b);
      6. aggravated sexual assault in violation of 13 V.S.A. § 3253 ; or
      7. aggravated sexual assault of a child in violation of 13 V.S.A. § 3253 a .
    2. "Interrupted sentence" means a sentence that is not served continuously, including a sentence to be served in intervals or a sentence to the work crew.

      Added dded 2019, No. 56 , § 2, eff. June 10, 2019; amended 2019, No. 148 (Adj. Sess.), § 14, eff. July 13, 2020; 21, No. 12 , § 2, eff. April 26, 2021.

History

Amendments--2021. Section heading: Deleted "good" preceding "time".

Subdiv. (b)(1): Inserted "to offenders sentenced to serve an interrupted sentence," following "title,"; deleted "good" following "earned"; and added the third sentence.

Subdiv. (b)(3): Substituted "earned" for "good" preceding "time".

Subdivision (b)(5): Added.

Subsec. (c): Added.

Amendments--2019 (Adj. Sess.). Section amended generally.

Legislative intent. 2019, No. 56 , § 1(b), provides: "(b) It is the intent of the General Assembly that the earned good time program established pursuant to 28 V.S.A. § 818:

"(1) be a simple and straightforward program that as much as possible minimizes complexities in implementation and management;

"(2) relies on easily ascertainable and objective standards and criteria for awarding good time rather than subjectivity and the application of discretion by the Department of Corrections; and

"(3) recognizes that there is a role in the correctional system for providing inmates with an incentive to reduce their sentences by adhering to Department of Corrections requirements."

§ 819. Extraordinary good time. Section 819 repealed effective July 1, 2021.

  1. Notwithstanding any other provision of law, the Commissioner may, in his or her discretion, award a reduction of up to 30 days in an offender's minimum and maximum sentence if the Commissioner determines that the offender has:
    1. acted to protect the life or safety of another person;
    2. performed an act that put the inmate in harm's way in order to protect or preserve the life of another person; or
    3. performed an act of heroism during an emergency.
  2. An award of extraordinary good time under this section may be made to an inmate:
    1. sentenced or committed to the custody of the Commissioner as defined in section 701 of this title;
    2. furloughed as defined in section 808 of this title;
    3. on parole as defined in section 402 of this title; or
    4. on supervised community sentence as defined in section 351 of this title.
  3. Within 30 days after an award of extraordinary good time pursuant to this section, the Department's Victim Services Unit shall provide notice of the award and the newly effective minimum and maximum release dates to any victim of record.

    Added 2019, No. 56 , § 3, eff. June 10, 2019; repealed on July 1, 2021 by 2019, No. 56 , § 7(a).

Subchapter 4. Discipline and Control of Inmates

ANNOTATIONS

Cited. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

§ 851. General provisions.

The supervising officer of each facility shall be responsible for the discipline, control, and safe custody of the inmates therein. No inmate shall be punished except under the order of the officer or of a deputy designated by him or her for the purpose, nor shall any punishment be imposed otherwise than in accordance with the provisions of this subchapter.

Added 1971, No. 199 (Adj. Sess.), § 20.

ANNOTATIONS

Analysis

1. Factors constituting punishment.

Prevention aims to remove the means to do something, while deterrence, by contrast, aims to convince a person not to do something that they retain the ability to do. Borden v. Hofmann, 185 Vt. 486, 974 A.2d 1249 (2009).

Plain and ordinary meaning of "punishment" is more than broad enough to encompass the Department of Corrections' use of a Nutraloaf-and-water diet for deterrence. For instance, while a dictionary defines "deterrent punishment" as that which is intended to deter the offender and others from malfeasance, it also notes that "preventative punishment" is intended to prevent a repetition of wrongdoing by disabling the offender. Borden v. Hofmann, 185 Vt. 486, 974 A.2d 1249 (2009).

Nutraloaf-and-water regime constitutes "punishment" within the meaning of the statute pertaining to discipline and control of inmates. Before they may be placed on the diet, inmates are entitled to process in accordance with the subchapter. Borden v. Hofmann, 185 Vt. 486, 974 A.2d 1249 (2009).

In considering what constitutes punishment of an inmate, three factors are particularly relevant: (1) whether the intent of the government officials is to punish; (2) whether the purpose of the restriction in question is for some legitimate governmental purpose; and whether the restriction is excessive in relation to its purpose. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

2. Termination of furlough.

Termination of inmate's furlough status and participation in sex-offender programs was not punishment. Conway v. Cumming, 161 Vt. 113, 636 A.2d 735 (1993).

3. Diet.

Stated goal of the program to reduce or limit offending behavior, together with the trial court's finding that Nutraloaf was designed to be unappetizing, compelled the conclusion that deterrence was central to the program, under which inmates were served a Nutraloaf-and-water diet in response to their abuse of food, utensils, or bodily waste. The principal aim of the Nutraloaf program was to deter. Borden v. Hofmann, 185 Vt. 486, 974 A.2d 1249 (2009).

Retribution and deterrence are traditional aims of punishment. A regime under which inmates were served a Nutraloaf-and-water diet in response to their abuse of food, utensils, or bodily waste was classic punitive deterrence. Borden v. Hofmann, 185 Vt. 486, 974 A.2d 1249 (2009).

§ 852. Disciplinary committee; hearing.

  1. The supervising officer of each facility shall appoint a disciplinary committee where appropriate from among the staff of the facility.  The supervising officer may designate himself or herself or a subordinate as chair of the committee.  The Commissioner may designate a hearing officer to hear evidence and make findings of fact and recommendations to the committee.
  2. In disciplinary cases, which may involve the imposition of disciplinary segregation or the loss of good time, the disciplinary committee or a designated hearing officer shall conduct a fact-finding hearing pursuant to the following procedure:
    1. Notice of the charge and of the hearing shall be given to the inmate so charged.
    2. The inmate shall have an opportunity subject to reasonable rules to confront the person bringing the charge.
    3. The inmate shall be entitled to be present and be heard at the hearing subject to reasonable rules of conduct.
    4. The committee or hearing officer shall summon to testify any available witness or other persons with relevant knowledge of the incident subject to reasonable rules.  The inmate charged may be permitted to question any person so summoned.
    5. The inmate charged may be assisted upon request in the preparation and presentation of his or her case by an assigned employee of the facility if the supervising officer determines, in his or her discretion, that the requested employee is reasonably available.
  3. If the charge against the inmate is sustained, the disciplinary committee may impose appropriate punishment, which shall be reviewed in every case by the supervising officer.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 48 , § 8; 1973, No. 206 (Adj. Sess.), § 4, eff. May 3, 1974.

History

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1973. Subsec. (b): Substituted "72 hours" for "two days" preceding "thereafter" and deleted "or the forfeiture of good behavior reductions" preceding "the disciplinary committee" in the introductory paragraph.

ANNOTATIONS

Analysis

1. Standard of proof.

Due process requires that prisoners accused of disciplinary infractions not be punished for such actions unless their guilt can be shown by a preponderance of the evidence, and trial court correctly found that governing rule denied prisoners due process where it allowed hearing officers to impose discipline as long as there was "some evidence" of violation. LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

Retroactive expungement of results of any prison disciplinary hearing since invalid standard-of-proof policy took effect was over broad, and trial court had discretion to deny this relief. LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

2. Nature of hearing.

Disciplinary hearing is not criminal proceeding and does not carry with it the full panoply of rights of criminal prosecution. In re Nash, 151 Vt. 1, 556 A.2d 88 (1988).

3. Examination of witnesses.

At disciplinary hearing where both presenter and petitioner were without counsel, it was appropriate for hearing officer to conduct questioning of witnesses. In re Nash, 151 Vt. 1, 556 A.2d 88 (1988).

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975).

§ 853. Punishment; maintenance of records; recommendation of transfer.

    1. Except in serious cases as provided in subdivision (2) of this subsection, punishment for a breach of the rules and regulations of the facility shall consist of deprivation of privileges. (a) (1)  Except in serious cases as provided in subdivision (2) of this subsection, punishment for a breach of the rules and regulations of the facility shall consist of deprivation of privileges.
    2. Serious breaches of the rules and regulations shall include assault, escape, attempt to escape, and other serious breaches. In cases involving a serious breach, the disciplinary committee may recommend to the supervising officer of the facility, who may then order, other forms of discipline in addition to or as substitution for a loss of privileges. If the serious breach results in damage to State-owned property, the disciplinary committee may fix an amount of restitution or reparation, which shall not exceed an amount the inmate can or will be able to pay, and shall fix the manner of performance. Other forms of discipline for a serious breach of the rules may include:
      1. Recommendation by the disciplinary committee and by the supervising officer to the Commissioner that the inmate be transferred to another facility.
      2. Segregation, in accordance with the regulations of the Department, in a cell or room, apart from the accommodations provided for inmates who are participating in programs of the facility; provided:
        1. the period of such segregation shall not exceed 30 days consecutively;
        2. he inmate shall be supplied with a sufficient quantity of wholesome and nutritious food, which shall be of the same quantity and nutritional quality as that provided to the general population of inmates at the facility;
        3. adequate sanitary and other conditions required for the health of the inmate shall be maintained; and
        4. the supervising officer of the facility shall comply with any recommendation that may be made by the facility's physician for measures with respect to dietary needs or conditions of segregation of each inmate required to maintain the health of the inmate.
  1. No cruel, inhuman, or corporal punishment shall be used on any inmate, nor is the use of force on any inmate justifiable except as provided by law.
  2. The supervising officer of any facility shall maintain a record of all breaches of rules, the disposition of each case, and the punishment, if any, for each breach. Each breach of the rules by an inmate shall be entered in the file of the inmate, together with the disposition or punishment therefor.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1975, No. 21 , § 2, eff. March 31, 1975; 1977, No. 57 , § 1, eff. April 21, 1977; 1977, No. 264 (Adj. Sess.), § 1; 2005, No. 177 (Adj. Sess.), § 2.

History

Amendments--2005 (Adj. Sess.). Amended the section generally.

Amendments--1977 (Adj. Sess.). Subsec. (a): Added the third sentence.

Amendments--1977. Subsec. (a): Deleted "for such period as may be necessary for maintenance of order or discipline, but in any case the following conditions shall be observed" following "facility" at the end of the last sentence of the introductory paragraph.

Subdiv. (a)(1): Substituted "thirty" for "fifteen" preceding "days".

Subdiv. (a)(2): Deleted "nutritional" preceding "quality".

Subdiv. (a)(4): Substituted "comply with" for "give full consideration to" preceding "any recommendation" and "institution's" for "consulting" preceding "physician".

Subdiv. (a)(5): Repealed.

Amendments--1975. Subdiv. (a)(4): Deleted the former first sentence and inserted "consulting" preceding "physician".

ANNOTATIONS

Cited. Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695 (1993).

§ 854. Grievances.

The Commissioner shall establish procedures to review the grievances of inmates. The Commissioner may utilize the services of a hearing officer to review grievances. Such procedures shall provide for the following:

  1. The review of grievances shall be by a person or persons other than the person or persons directly responsible for the conditions or actions giving rise to the grievance.
  2. All inmates shall be allowed to communicate grievances directly to the Commissioner, and an inmate's right to file grievances shall not be restricted.
  3. All inmates shall be informed of the grievance procedure, which shall be available to all inmates.

    Added 1973, No. 206 (Adj. Sess.), § 5, eff. May 3, 1974.

History

Revision note. Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

§ 855. Hearing officers.

The Commissioner may appoint such hearing officers as are necessary to conduct administrative hearings within the Department.

Added 1973, No. 206 (Adj. Sess.), § 6, eff. May 3, 1974.

§ 856. Special management meals.

  1. When an inmate misuses bodily waste or fluids, food, or eating utensils, the supervising officer of the facility or his or her designee may order that the inmate be served special management meals in lieu of regular inmate meals pursuant to this section.
    1. When it appears to the supervising officer that an inmate may be subject to an order to receive special management meals, the officer shall notify the inmate in writing of the reason for the determination and the facility's evidence for it. (b) (1)  When it appears to the supervising officer that an inmate may be subject to an order to receive special management meals, the officer shall notify the inmate in writing of the reason for the determination and the facility's evidence for it.
      1. Before being served special management meals, the inmate shall be provided an opportunity to meet with a member of the facility's staff not involved in the incident. The purpose of the meeting shall be to serve as an initial check against mistaken decisions and to determine whether there are reasonable grounds to believe that the inmate misused bodily waste or fluids, food, or eating utensils. (2) (A) Before being served special management meals, the inmate shall be provided an opportunity to meet with a member of the facility's staff not involved in the incident. The purpose of the meeting shall be to serve as an initial check against mistaken decisions and to determine whether there are reasonable grounds to believe that the inmate misused bodily waste or fluids, food, or eating utensils.
      2. At a meeting between an inmate and a staff member held pursuant to this subdivision (2), the inmate may identify any disagreement he or she has with the facility's version of the facts, identify witnesses who support his or her defense, identify any mitigating circumstances that should be considered, and offer any other arguments that may be appropriate. The inmate shall not have the right to cross-examine witnesses or to call witnesses to testify on his or her behalf.
  2. If the officer determines that there are reasonable grounds to believe that the inmate misused bodily waste or fluids, food, or eating utensils, the officer may order that the inmate be served special management meals in lieu of regular inmate meals for a maximum of seven consecutive days.
  3. When the supervising officer orders that an inmate be served special management meals, a hearing officer designated by the officer shall conduct a fact-finding hearing within 48 hours pursuant to the following procedure:
    1. Notice of the charge and of the hearing shall be given to the inmate.
    2. The inmate shall have an opportunity, subject to reasonable rules, to confront the person bringing the charge.
    3. The inmate shall have the right to be present and heard at the hearing subject to reasonable rules of conduct.
    4. The hearing officer shall summon to testify any available witness or other persons with relevant knowledge of the incident, subject to reasonable rules. The inmate charged may be permitted to question any person who testifies pursuant to this subdivision.
    5. If the inmate so requests, he or she may be assisted in the preparation and presentation of his or her case by an assigned employee of the facility if the supervising officer determines in his or her discretion that the requested employee is reasonably available.
  4. If the hearing officer determines that a preponderance of the evidence does not establish that the inmate misused bodily waste or fluids, food, or eating utensils, the supervising officer shall discontinue service of special management meals to the inmate.
  5. The service of special management meals shall not be construed as punishment and shall not be subject to the requirements of sections 851-853 of this title.

    Added 2009, No. 58 , § 21.

§ 857. Administrative segregation; procedural requirements.

  1. Except in emergency circumstances as described in subsection (b) of this section, before an inmate is placed in administrative segregation, regardless of whether that inmate has been designated as having a serious functional impairment under section 906 of this title, the inmate is entitled to a hearing pursuant to subsection 852(b) of this title.
  2. In the event of an emergency situation and at the discretion of the Commissioner, an inmate may be placed in administrative segregation prior to receiving a hearing as described in subsection 852(b) of this title.

    Added 2015, No. 137 (Adj. Sess.), § 2, eff. May 25, 2016.

Subchapter 5. Special Treatment Programs

Cross References

Cross references. Reduction of term for participation in treatment program, see § 811 of this title.

Services for inmates with serious functional impairment, see § 906 et seq. of this title.

§ 901. Evaluation and treatment facilities.

The Department shall operate or cause to be operated one or more facilities for the evaluation and treatment of offenders. The facilities may be either residential or nonresidential.

Added 1971, No. 199 (Adj. Sess.), § 20.

§ 902. Commitment and sentencing.

When a person is convicted of a crime before a court having criminal jurisdiction punishable by imprisonment, the court, in its discretion, before sentence may, with the consent of the Commissioner, order the person committed on a temporary basis to the custody of the Commissioner for the purpose of assignment to a facility for evaluation. The Commissioner shall return the person to the court within 60 days with a written report and recommendation whether the person should be placed on probation or should be committed.

Added 1971, No. 199 (Adj. Sess.), § 20.

§ 903. Access to treatment pending appeal; rule.

Treatment, assessment, evaluation, screening, or programming shall not be restricted or denied to inmates on the basis of any anticipated or pending direct or collateral appeal of any criminal conviction, nor on the basis of any position taken by the appellant in any such action. The Commissioner shall adopt rules pursuant to 3 V.S.A. chapter 25 regarding the confidentiality of communications by an inmate made for the purposes of treatment, assessment, evaluations, screening, or programming while an appeal is pending. This provision neither expands nor contracts the duty of the Commissioner to adopt rules pursuant to 3 V.S.A. chapter 25.

Added 1995, No. 185 (Adj. Sess.), § 51, eff. May 22, 1996; amended 2015, No. 23 , § 132.

History

Amendments--2015 Substituted "adopt" for "promulgate" preceding "rules" in the second sentence, and substituted "3 V.S.A. chapter 25" for "chapter 25 of Title 3" in the second and third sentences.

§§ 904. [Reserved for future use.].

Subchapter 6. Services for Inmates with Serious Functional Impairment

History

Amendments--2009 2009, No. 26 , § 2, substituted "Functional Impairment" for "Mental Illness" in the subchapter heading.

§ 905. Legislative intent.

It is the intent of the General Assembly that the serious functional impairment designation apply solely to individuals residing in a correctional facility and not to individuals reentering the community after incarceration.

Added 2013, No. 123 (Adj. Sess.), § 1, eff. May 9, 2014; amended 2017, No. 74 , § 119a.

History

2017. 2017, Act No. 74 revised subchapter 6, which formerly comprised §§ 906 through 908, to now comprise §§ 905 through 908.

§ 906. Definitions.

As used in this subchapter:

  1. "Serious functional impairment" means:
    1. a disorder of thought, mood, perception, orientation, or memory as diagnosed by a qualified mental health professional, which substantially impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life and which substantially impairs the ability to function within the correctional setting; or
    2. a developmental disability, traumatic brain injury or other organic brain disorder, or various forms of dementia or other neurological disorders, as diagnosed by a qualified mental health professional, which substantially impairs the ability to function in the correctional setting.
  2. "Qualified mental health professional" means a person with professional training, experience, and demonstrated competence in the treatment of mental conditions or psychiatric disabilities or serious functional impairments who is a physician, psychiatrist, psychologist, social worker, nurse, or other qualified person determined by the Commissioner of Mental Health.
  3. "Mental condition or psychiatric disability or disorder" means a condition that falls under any Axis I diagnostic categories or the following Axis II diagnostic categories as listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR Fourth Edition (Text Revision), as updated from time to time: borderline personality disorder, histrionic personality disorder, developmental disability, obsessive-compulsive personality disorder, paranoid personality disorder, schizoid personality disorder, or schizotypal personality disorder.
  4. "Screening" means an initial survey, which shall be trauma-informed, to identify whether an inmate has immediate treatment needs or is in need of further evaluation.

    Added 1993, No. 224 (Adj. Sess.), § 1; amended 1995, No. 174 (Adj. Sess.), § 3; 2007, No. 15 , § 22; 2009, No. 26 , § 2; 2013, No. 96 (Adj. Sess.), § 190.

History

Amendments--2013 (Adj. Sess.). Subdiv. (2): Substituted "conditions or psychiatric disabilities" for "illness" following "mental".

Subdiv. (3): Substituted "Mental condition or psychiatric disability" for "Mental illness" preceding "or disorder" and "developmental disability" for "mental retardation" following "histrionic personality disorder,".

Amendments--2009 Section amended generally.

Amendments--2007. Subdiv. (2): Pursuant to the general amendment in Act 15, § 22(b), substituted "commissioner of mental health" for "commissioner of developmental and mental health services".

Amendments--1995 (Adj. Sess.) Subdiv. (2): Substituted "commissioner of developmental and mental health services" for "commissioner of mental health and mental retardation".

§ 907. Mental health service for inmates; powers and responsibilities of Commissioner.

The Commissioner shall administer a program of trauma-informed mental health services that shall be available to all inmates and shall provide adequate staff to support the program. The program shall provide the following services:

    1. Within 24 hours of admittance to a correctional facility, all inmates shall be screened for any signs of mental illness, mental condition, psychiatric disability or disorder, or serious functional impairment. If as a result of the screening it is determined that the inmate is receiving services under the developmental disabilities home- and community-based services waiver or is currently receiving community rehabilitation and treatment services, he or she will automatically be designated as having a serious functional impairment. (1) (A) Within 24 hours of admittance to a correctional facility, all inmates shall be screened for any signs of mental illness, mental condition, psychiatric disability or disorder, or serious functional impairment. If as a result of the screening it is determined that the inmate is receiving services under the developmental disabilities home- and community-based services waiver or is currently receiving community rehabilitation and treatment services, he or she will automatically be designated as having a serious functional impairment.
    2. Every inmate who is identified as a result of screening by a mental health professional as requiring inpatient evaluation, treatment, or services shall, within 48 hours of the screening, be provided with such treatment, evaluation, or services in a setting appropriate to the clinical needs of the inmate.
  1. A thorough trauma-informed evaluation, conducted in a timely and reasonable fashion by a qualified mental health professional, which includes a review of available medical and psychiatric records. The evaluation shall be made of each inmate who:
    1. has a history of a mental condition or psychiatric disability or disorder;
    2. has received community rehabilitation and treatment services; or
    3. shows signs or symptoms of a mental condition or psychiatric disability or disorder or of serious functional impairment at the initial screening or as observed subsequent to entering the facility.
  2. The development and implementation of an individual treatment plan, when a clinical diagnosis by a qualified mental health professional indicates an inmate has a mental condition or psychiatric disability or disorder or from serious functional impairment. The treatment plan shall be developed in accordance with best practices and explained to the inmate by a qualified mental health professional.
  3. Access to a variety of services and levels of care consistent with the treatment plan to inmates with a mental condition or psychiatric disability or disorder or serious functional impairment. These services shall include, as appropriate, the following:
    1. Follow-up evaluations.
    2. Crisis intervention.
    3. Crisis beds.
    4. Residential care within a correctional institution.
    5. Clinical services provided within the general population of the correctional facility.
    6. Services provided in designated special needs units.
    7. As a joint responsibility with the Department of Mental Health and the Department of Disabilities, Aging, and Independent Living, and working with designated agencies, the implementation of discharge planning that coordinates access to services for which the offender is eligible, developed in a manner that is guided by best practices and consistent with the reentry case plan developed under subsection 1(b) of this title.
    8. Other services that the Department of Corrections, the Department of Disabilities, Aging, and Independent Living, and the Department of Mental Health jointly determine to be appropriate.
  4. Proactive procedures to seek and identify any inmate who has not received the enhanced screening, evaluation, and access to mental health services appropriate for inmates with a mental condition or psychiatric disability or disorder or a serious functional impairment.
  5. Special training to medical and correctional staff to enable them to identify and initially deal with inmates with a mental illness or disorder or a serious functional impairment. This training shall include the following:
    1. Recognition of signs and symptoms of a mental condition or psychiatric disability or disorder or a serious functional impairment in the inmate population.
    2. Recognition of signs and symptoms of chemical dependence and withdrawal.
    3. Recognition of adverse reactions to psychotropic medication.
    4. Recognition of improvement in the general condition of the inmate.
    5. Recognition of developmental disability.
    6. Recognition of mental health emergencies and specific instructions on contacting the appropriate professional care provider and taking other appropriate action.
    7. Suicide potential and prevention.
    8. Precise instructions on procedures for mental health referrals.
    9. Any other training determined to be appropriate.

      Added 1993, No. 224 (Adj. Sess.), § 1; amended 1995, No. 174 (Adj. Sess.), § 3; 2007, No. 15 , § 22; 2009, No. 26 , § 2; 2013, No. 96 (Adj. Sess.), § 190; 2017, No. 78 , § 5; 2017, No. 78 , § 6, eff. July 1, 2019.

History

Amendments--2017. Substituted "that" for "which" following "services" in the introductory language.

Subdiv. (1)(A): Added the subdiv. designation; in the first sentence, inserted "mental illness," following "signs of" and substituted a comma for "or" following "condition"; and in the second sentence, substituted "community-based" for "community based" preceding "services".

Subdiv. (1)(B): Added by Act No. 78, § 5.

Subdiv. (1)(B): Act 78, § 6 substituted "48 hours" for "24 hours" following "within" and substituted "provided with" for "referred for" preceding "such treatment".

Amendments--2013 (Adj. Sess.). Subdiv. (1): Substituted "mental condition or psychiatric disability" for "mental illness" following "signs of", inserted "disabilities home and community based" following "developmental".

Subdiv. (2)(A): Substituted "a mental condition or psychiatric disability" for "mental illness" following "history of".

Subdivs. (2)(C) and (6)(A): Substituted "a mental condition or psychiatric disability" for "mental illness" following "symptoms of".

Subdiv. (3): Substituted "has a mental condition or psychiatric disability" for "is suffering from mental illness" following "inmate".

Subdiv. (4): Substituted "with a mental condition or psychiatric disability" for "suffering mental illness" following "inmates".

Subdiv. (5): Substituted "with a mental condition or psychiatric disability" for "suffering from a mental illness" following "inmates".

Subdiv. (6)(E): Substituted "developmental disability" for "mental retardation" at the end.

Amendments--2009 Subdivs. (1) through (3): Amended generally.

Subdiv. (4): Deleted "serious" preceding "mental illness" and added "or disorder or serious functional impairment" in the introductory paragraph, rewrote subdiv. (G), inserted "the department of disabilities, aging, and independent living" following "corrections" in subdiv. (H).

Subdiv. (5): Substituted "Proactive procedures" for "Procedures to actively" preceding "seek", deleted "serious" preceding "mental illness" and added "or disorder or a serious functional impairment" thereafter.

Subdiv. (6): Deleted "serious" preceding "mental illness" and added "or disorder or a serious functional impairment" thereafter in the introductory paragraph and in subdiv. (A).

Amendments--2007. Subdivs. (4)(G), (H): Pursuant to the general amendment in Act 15, § 22(b), substituted "department of mental health" for "department of developmental and mental health services".

Amendments--1995 (Adj. Sess.) Subdiv. (4): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation" in subdivs. (G) and (H).

Cross References

Cross references. Transfer of inmates to Department of Mental Health, see § 703 of this title.

ANNOTATIONS

1. Classification as mentally ill.

Inmate's action based on violations of 28 V.S.A. §§ 501, 505, 703, and 907 was not dismissed for failure to state a claim because it was not barred by the doctrines of res judicata or collateral estoppel; the evidence showed that the claim that several State officials improperly classified the inmate as mentally ill had not been previously litigated in several prior State court actions. Rheaume v. King, - F. Supp. 2d - (D. Vt. Feb. 15, 2001).

§ 908. Access to mental health services; notice.

The Commissioner shall ensure that notice of services available to inmates and the manner in which those services are made available to inmates is widely disseminated to staff and inmates throughout the Department.

Added 1993, No. 224 (Adj. Sess.), § 1.

CHAPTER 12. COMMUNITY REPARATIVE BOARDS

Sec.

History

Amendments--1999 (Adj. Sess.) 1999, No. 148 (Adj. Sess.), § 67, eff. May 24, 2000, substituted "Community Reparative Boards" for "Community-Based Programs" in the chapter heading.

Purpose. 1989, No. 288 (Adj. Sess.), § 1, provided:

"The purpose of this act [which added sections 911 and 912 of this title] is:

"(1) to establish a public-private partnership program for the purpose of providing funds for the development and operation of community-based alternatives to incarceration;

"(2) to facilitate reintegration of adult offenders into the community, by providing for short-term residence in a half-way house and for related services of therapeutic support and assistance in the acquisition of community living skills; and

"(3) to mitigate the need for capital construction of correctional facilities."

§ 910. Restorative Justice Program.

This chapter establishes a program of restorative justice for use with offenders required to participate in such a program as a condition of a sentence of probation or as ordered for civil contempt of a child support order under 15 V.S.A. § 603 . The Program shall be carried out by community reparative boards under the supervision of the Commissioner, as provided by this chapter.

Added 1999, No. 148 (Adj. Sess.), § 68, eff. May 24, 2000; amended 2011, No. 119 (Adj. Sess.), § 11.

History

Amendments--2011 (Adj. Sess.) Deleted "for probationers" from the end of the section heading, and added "or as ordered for civil contempt of a child support order under 15 V.S.A. § 603" at the end of the first sentence.

§ 910a. Reparative boards; functions.

  1. The Commissioner shall establish reparative boards and appoint to them members of the community with the advice and recommendation of nonprofit organizations or municipal entities in the localities concerned. The Commissioner shall appoint each board member to a term of one to three years, may reappoint a member to consecutive terms, and may remove a member for good cause.
  2. Each board shall elect its chair from its membership. A chair may serve for no more than one year uninterrupted. All meetings of a board shall comply with open meeting law requirements of 1 V.S.A. chapter 5, subchapter 2, consistent with probationer confidentiality requirements of this title, and as may be imposed by the court.
  3. Each board shall adopt bylaws approved by the Commissioner. Such bylaws may authorize each board to establish panels to conduct reparative board activities.
  4. Each board shall conduct its meetings in a manner that promotes safe interactions among an offender, victim or victims, and community members, and shall:
    1. In collaboration with the Department, municipalities, the courts, and other entities of the criminal justice system, implement the Restorative Justice Program of seeking to obtain offender accountability, repair harm and compensate a victim or victims and the community, increase an offender's awareness of the effect of his or her behavior on a victim or victims and the community, and identify ways to help an offender comply with the law.
    2. Educate the public about, and promote community support for, the Restorative Justice Program.
  5. Each board shall have access to the central file of any offender required to participate with that board in the Restorative Justice Program.
  6. When engaged in board activities, a board member shall be considered a volunteer with regard to any grievance or other matter governed by 3 V.S.A. § 1101 .

    Added 1999, No. 148 (Adj. Sess.), § 68, eff. May 24, 2000; amended 2011, No. 119 (Adj. Sess.), § 12.

History

Amendments--2011 (Adj. Sess.). Substituted "offender" for "probationer" throughout.

§ 911. Grant program for community-based half-way houses and programs.

  1. A grant program for community-based alternatives to incarceration is established to assist:
    1. private nonprofit community organizations establish half-way houses and programs to help adult ex-offenders and offenders on probation, parole, or furlough reintegrate into the community; and
    2. existing half-way houses and programs for adult ex-offenders and offenders on probation, parole, or furlough.
  2. The Alternatives to Incarceration Board established under section 912 of this title shall establish procedures and guidelines by which it shall solicit and review proposals for grants, award grants, and monitor and evaluate the progress of projects funded under this chapter.
  3. Private, nonprofit organizations which create residential half-way houses for former prisoners or offenders on community release status shall receive priority funding under this chapter.
  4. [Repealed.]

    Added 1989, No. 288 (Adj. Sess.), § 2; 2009, No. 33 , § 83( l )(2).

History

Amendments--2009 Subsec. (d): Repealed.

§ 912. Repealed. 1999, No. 148 (Adj. Sess.), § 70, eff. May 24, 2000.

History

Former § 912, relating to alternatives to incarceration board, was derived from 1989, No. 288 (Adj. Sess.), § 2.

CHAPTER 13. TOWN AND VILLAGE LOCKUPS

Sec.

Cross References

Cross references. Woodside Juvenile Rehabilitation Center, see § 5801 of Title 33.

§ 1001. Erection of lockups.

At a meeting called for that purpose, a town or incorporated village may authorize the selectboard of the town or trustees of the village, to purchase or erect and maintain at the expense of the town or village within its corporate limits one or more lockups.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

2019. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Prior law. 28 V.S.A. § 601.

§ 1002. Jailer; appointment; removal.

The selectboard of a town or the trustees of an incorporated village may appoint a jailer of the lockup and may remove him or her at pleasure. The appointment or removal shall be in writing and recorded in the office of the town or village clerk.

Added 1971, No. 199 (Adj. Sess.), § 20.

History

2019. Substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Prior law. 28 V.S.A. § 602.

§ 1003. Commitments.

When process is delivered to an officer to serve, requiring the officer to commit a person to jail to await examination or trial before a Superior Court, if the order for commitment was made within the limits of a town, incorporated village, or a county maintaining a lockup, that person may be committed for not more than 72 hours, unless the time is extended by court order, to the lockup and be subject to the restraints and entitled to the privileges provided by law for persons confined in a correctional facility. A person under 18 years of age charged or convicted of a misdemeanor may not be detained in a lockup used to house inmates over 18 years of age, except as provided in 33 V.S.A. § 5293 .

Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1987, No. 182 (Adj. Sess.), § 6; 2013, No. 131 (Adj. Sess.), § 132, eff. May 20, 2014.

History

2019. Deleted "District or" preceding "Superior Court" in accordance with 2009, No. 154 (Adj. Sess.), § 236.

Reference to "section 657a" in last sentence changed to "section 5530" to conform to recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Deleted "justice" preceding "district or a superior court" in light of 1973, No. 249 (Adj. Sess.), which transferred functions of the justice courts to the district courts. See note set out preceding § 491 of Title 4.

Amendments--2013 (Adj. Sess.). Substituted "33 V.S.A. § 5293" for "section 5530 of Title 33" at the end.

Amendments--1987 (Adj. Sess.). Substituted "the officer" for "him" following "serve, requiring" in the first sentence and added the second sentence.

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court".

Prior law. 28 V.S.A. § 604.

§ 1004. Standards of maintenance and use by Department of Corrections.

  1. All lockups must meet the standards established by the Commissioner of Corrections.  Such standards shall comply with the standards and requirements relating to medical care established under the provisions of section 801 of this title.  To assist in the management of correctional facilities, the Commissioner may contract to house an inmate in a local lockup for pretrial detention, confinement, or for community release.  The Commissioner or his or her authorized agent shall visit and inspect all lockups at least once every six months.
  2. The selectboard, trustees, or sheriffs maintaining a lockup that fails to meet minimum standards shall discontinue its use within 30 days after notice thereof is sent to them by the Commissioner.  They shall cause its inmates to be transferred to the nearest regional correctional facility.  If the selectboard, trustees, or sheriffs do not keep a lockup according to the standards established by the Commissioner or fail to discontinue its use after notice from the Commissioner, he or she may petition the Superior Court, and the court may grant an injunction against continued use of the lockup.  The court may make other orders appropriate and necessary for enforcing this section.

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1977, No. 57 , § 2, eff. April 22, 1977; 1981, No. 185 (Adj. Sess.), § 3, eff. April 22, 1982; 1987, No. 199 (Adj. Sess.), § 2.

History

2019. In the first and third sentences, substituted "selectboard" for "selectmen" in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Amendments--1987 (Adj. Sess.). Subsec. (a): Added the second sentence.

Amendments--1981 (Adj. Sess.). Section heading: Added "and use by department of corrections".

Subsec. (a): Substituted "pretrial detention, confinement, or for community release" for "no longer than 72 hours unless the time is extended in the case of emergency" at the end of the second sentence.

Amendments--1977. Subsec. (a): Inserted the second sentence.

Amendments--1973 (Adj. Sess.). Subsec. (b): Substituted "superior" for "county" preceding "court" in the third sentence.

Prior law. 28 V.S.A. § 605.

CHAPTER 15. JUVENILE SERVICES

Cross References

Cross references. Interstate Compact on Juveniles, see 33 V.S.A. § 5701 et seq.

Subchapter 1. General Provisions

§ 1101. Powers and responsibilities of the commissioner regarding juvenile services.

The Commissioner is charged with the following powers and responsibilities regarding the administration of juvenile services:

  1. to provide appropriate facilities for the custody and treatment of offenders under 25 years of age committed to his or her custody in accordance with the laws of the State;
  2. to supervise and administer and oversee the maintenance of the facilities, in accordance with the various powers and responsibilities established in the office of Commissioner by this title, by 33 V.S.A. chapter 52, and by 3 V.S.A. §§ 3052 and 3053;
  3. to advise, upon request and in his or her discretion, local, State, and federal officials and public and private agencies and lay groups on the needs for and possible methods of the reduction and prevention of delinquency and the treatment of delinquents;
  4. to cooperate with other agencies whose services deal with the care and treatment of delinquents to the end that children who are committed to the custody of the Commissioner may wherever possible be assisted to a successful adjustment outside institutional care;
  5. to cooperate with other agencies in surveying, developing, and utilizing the resources of a community as a means of combating the problem of juvenile delinquency and of effectuating rehabilitation; and
  6. to hold community and State conferences from time to time in order to acquaint the public with current issues of juvenile delinquency.
  7. [Repealed.]

    Added 1971, No. 199 (Adj. Sess.), § 20; amended 2009, No. 33 , § 83( l )(3); 2013, No. 131 (Adj. Sess.), § 133, eff. May 20, 2014; 2015, No. 153 (Adj. Sess.), § 16, eff. July 1, 2017; 2019, No. 124 (Adj. Sess.), § 11.

History

Revision note. In subdiv. (2) reference to "chapter 12" changed to "chapter 55" to conform to recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

Amendments--2019 (Adj. Sess.). Subdiv. (1): Deleted ", separate" following "appropriate".

Amendments--2015 (Adj. Sess.). Subdiv. (1): Substituted "offenders under 25 years of age" for "children" preceding "committed".

Amendments--2013 (Adj. Sess.). Substituted "33 V.S.A. chapter 52," for "33 V.S.A. chapter 55" following "by this title, by" in subdiv. (2), and "combating" for "combatting" following "as a means of" in subdiv. (5).

Amendments--2009 Subdiv. (7): Repealed.

Effective date of subdiv. (1). 2015, No. 153 (Adj. Sess.), § 39 provided that the amendments to subdiv. (1) of this section would take effect on July 1, 2017, however pursuant to 2017, No. 72 , § 7a, the effective date of the amendments was extended to July 1, 2018.

§ 1102. Administration of facilities providing juvenile services; care of juveniles.

  1. The supervising officer of any facility providing juvenile services shall be subject to all the powers and responsibilities applied to the supervising officers of facilities by section 601 of this title.
  2. Children committed to the custody of the Commissioner in accordance with the laws of the State, wherever appropriate, shall be subject to the provisions established in chapter 11, subchapter 3 of this title.

    Added 1971, No. 199 (Adj. Sess.), § 20.

§ 1103. Treatment program.

To aid in the treatment of juveniles committed to his or her custody, the Commissioner may:

  1. develop and administer programs of educational, vocational and physical training designed to prepare juveniles committed to his or her custody for their roles as citizens of the state and community;
  2. make full use of other methods of treatment, including medical and psychiatric examination, care, and treatment for the benefit of the child and conducive to the prevention of future violations of law by the child.

    Added 1971, No. 199 (Adj. Sess.), § 20.

History

Revision note. Subsec. designation at beginning of section deleted to conform section to V.S.A. style.

§ 1104. Consent to medical treatment.

For the purpose of granting consent for the rendering of needed medical assistance, the State shall stand in the relationship of parent and legal guardian of the child needing the assistance, and the State shall have exclusive authority to grant consent for the assistance, notwithstanding the provisions of any other statute or law. The Commissioner, and any other officer or employee he or she may so designate, shall represent the State in this relationship.

Added 1971, No. 199 (Adj. Sess.), § 20.

§ 1105. Repealed. 2011, No. 79 (Adj. Sess.), § 31, eff. April 4, 2012.

History

Former § 1105. Former § 1105, relating to transfer of juveniles to state hospital, was derived from 1971, No. 199 (Adj. Sess.), § 20.

Subchapter 2. Weeks School

History

Editor's note. The Weeks School, to which this subchapter refers, is no longer in operation.

§§ 1151-1158. Repealed. 2009, No. 33, § 83(l)(4).

History

Former § 1151, relating to Weeks School policy, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1973, No. 232 (Adj. Sess.), § 1; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3.

Former § 1152, relating to legal custody, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1973, No. 232 (Adj. Sess.), § 2.

Former § 1153, relating to care and treatment, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1973, No. 232 (Adj. Sess.), § 3.

Former § 1154, relating to employment of children committed to Weeks School, was derived from 1971, No. 199 (Adj. Sess.), § 20 and amended by 1977, No. 146 (Adj. Sess.), § 6.

Former § 1155, relating to Weeks School, was derived from 1973, No. 48 , § 9.

Former § 1156, relating to admissions, was derived from 1973, No. 232 (Adj. Sess.), § 4.

Former § 1157, relating to diagnosis and treatment plan, was derived from 1973, No. 232 (Adj. Sess.), § 5.

Former § 1158, relating to discharge or release, was derived from 1973, No. 232 (Adj. Sess.), § 6.

CHAPTER 16. YOUTHFUL OFFENDERS

Sec.

§ 1161. Powers and responsibilities of the Commissioner regarding supervision of youthful offenders.

In accordance with 33 V.S.A. chapter 52A, the Commissioner shall be charged with the following powers and responsibilities regarding supervision of youthful offenders:

  1. consistent with 33 V.S.A. § 5284(d) , to designate a case manager who, together with a case manager appointed by the Commissioner for Children and Families, will determine the lead department to preside over the case plan and the provision of services to youths who are adjudicated as youthful offenders;
  2. together with the Commissioner for Children and Families, to maintain the general supervision of youths adjudicated as youthful offenders and placed on conditions of juvenile probation; and
  3. to supervise the administration of probation services and establish policies and standards regarding youthful offender probation investigation, supervision, case work, record keeping, and the qualification of probation officers working with youthful offenders.

    Added 2017, No. 72 , § 2, eff. July 1, 2018.

§ 1162. Methods of supervision.

  1. Electronic monitoring.  The Commissioner may utilize an electronic monitoring system to supervise a youthful offender placed on juvenile probation.
  2. Graduated sanctions.
    1. If ordered by the court pursuant to a modification of a youthful offender disposition under 33 V.S.A. § 5285(c)(1) , the Commissioner may sanction the youthful offender in accordance with rules adopted pursuant to subdivision (2) of this subsection.
    2. The Department of Corrections shall adopt rules pursuant to 3 V.S.A. chapter 25 that establish graduated sanction guidelines for a youthful offender who violates the terms of his or her probation.

      Added 2017, No. 72 , § 2, eff. July 1, 2018.

CHAPTER 21. UNIFORM ACT FOR OUT-OF-STATE PAROLEE SUPERVISION

Sec.

History

Repeal. This chapter was repealed by 1999, No. 90 (Adj. Sess.), § 4, upon enactment of the Interstate Compact for the Supervision of Adult Offenders [see Chapter 22 of this title].

1999, No. 90 (Adj. Sess.), § 5, provided that the repeal of this chapter, by Sec. 4 of the act, shall take effect on the date that the Interstate Compact for the Supervision of Adult Offenders took effect as provided by 28 V.S.A. § 1361(a).

§§ 1301, 1302. Repealed. 1999, No. 90 (Adj. Sess.), § 4.

History

Former §§ 1301, 1302. Former § 1301, relating to terms of Compact, was derived from V.S. 1947, § 8039. 1944, No. 202 , § 8202. 1937, No. 218 , § 1.

Former § 1302, relating to violations of conditions; retaking; hearing and notice, was derived from 2001, No. 149 (Adj. Sess.), § 55.

CHAPTER 22. INTERSTATE COMPACT FOR THE SUPERVISION OF ADULT OFFENDERS

Sec.

History

Short title. 1999, No. 90 (Adj. Sess.), § 2, eff. April 27, 2000, provided: "The compact adopted on the part of the state of Vermont by this act may be cited as The Interstate Compact for Adult Offender Supervision."

§ 1351. Article I; Purpose.

  1. The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 of 1965, has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states:
    1. to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community;
    2. to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending, and receiving states; and
    3. to equitably distribute the costs, benefits, and obligations of the compact among the compacting states.
  2. In addition, this compact shall:
    1. create an interstate commission which shall establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies which shall promulgate rules to achieve the purpose of this compact;
    2. ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;
    3. establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial and legislative branches and criminal justice administrators;
    4. monitor compliance with rules governing interstate movement of offenders, and initiate interventions to address and correct noncompliance; and
    5. coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.
  3. The compacting states recognize that there is no right of any offender to live in another state, and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and of bylaws and rules promulgated hereunder.
  4. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefore public business.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1352. Article II; Definitions.

As used in this compact, unless the context clearly requires a different construction:

  1. "Adult" means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law.
  2. "Bylaws" means those bylaws established by the Interstate Commission for its governance, or for directing or controlling the Interstate Commission's actions or conduct.
  3. "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the state council under this compact.
  4. "Compacting state" means any state which has enacted the enabling legislation for this compact.
  5. "Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact.
  6. "Interstate Commission" means the Interstate Commission for Adult Offender Supervision established by this compact.
  7. "Member" means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner.
  8. "Noncompacting state" means any state which has not enacted the enabling legislation for this compact.
  9. "Offender" means an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies.
  10. "Person" means any individual, corporation, business enterprise or other legal entity, either public or private.
  11. "Rules" means acts of the Interstate Commission, duly promulgated pursuant to Article VIII of this compact, substantially affecting interested parties in addition to the Interstate Commission, which shall have the force and effect of law in the compacting states.
  12. "State" means a state of the United States, the District of Columbia, and any other territorial possessions of the United States.
  13. "State council" means the resident members of the state council for interstate adult offender supervision created by each state under Article III of this compact.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1353. Article III; The compact commission.

  1. The compacting states hereby create the Interstate Commission for Adult Offender Supervision. The Interstate Commission shall be a body corporate and the joint agency of the compacting states. The Interstate Commission shall have all the responsibilities, powers, and duties set forth in this compact, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  2. The Interstate Commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state.
  3. In addition to the commissioners who shall be the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners but who are members of interested organizations. Such noncommissioner members shall include a member of the national organizations of governors, legislators, state chief justices, attorneys general, and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio, nonvoting members. The Interstate Commission may provide in its bylaws for such additional, ex officio, nonvoting members as it deems necessary.
  4. Each compacting state represented at any meeting of the Interstate Commission shall have one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
  5. The Interstate Commission shall meet at least once each calendar year. The chair may call additional meetings and, upon the request of 27 or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
  6. The Interstate Commission shall establish an executive committee which shall include commission officers, members, and others as shall be determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking or amendment to the Compact. The executive committee shall oversee the day-to-day activities managed by the executive director and Interstate Commission staff, administer enforcement and compliance with the provisions of the Compact, its bylaws and as directed by the Interstate Commission, and perform other duties as directed by the Commission or set forth in the bylaws.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1354. Article IV; The State Council.

  1. The Vermont State Council for Interstate Adult Offender Supervision is created. The State Council shall consist of six members:
    1. one member of the House of Representatives, who shall be appointed by the Speaker, and one member of the Senate, who shall be appointed by the Committee on Committees;
    2. one representative of the Judicial Branch appointed by the Chief Justice of the Supreme Court;
    3. one representative of the Executive Branch appointed by the Governor;
    4. one representative of a victims group appointed by the Governor; and
    5. one individual who in addition to serving as a member of the Council shall serve as the Compact Administrator for this State, appointed by the Governor after consultation with the General Assembly and the Supreme Court.
  2. The State Council shall appoint the Compact Administrator as the Vermont commissioner to the Interstate Commission. The Vermont commissioner shall serve on the Interstate Commission in such capacity under or pursuant to applicable law of this State.
  3. The State Council shall exercise oversight and advocacy concerning its participation in Interstate Commission activities and other duties as may be determined by the State Council, including development of policy concerning operations and procedures of the compact within this State.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000; amended 2017, No. 190 (Adj. Sess.), § 28, eff. May 28, 2018.

History

Amendments--2017 (Adj. Sess.). Subsec. (a): Amended generally.

§ 1355. Article V; Powers and duties of the Interstate Commission.

The Interstate Commission shall have the following powers:

  1. To adopt a seal and suitable bylaws governing the management and operation of the Interstate Commission.
  2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
  3. To oversee, supervise, and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the compact Commission.
  4. To enforce compliance with compact provisions, Interstate Commission rules, and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process.
  5. To establish and maintain offices.
  6. To purchase and maintain insurance and bonds.
  7. To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs.
  8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions, including, but not limited to, an executive committee as required by Article III of this compact which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
  9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel.
  10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same.
  11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.
  12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.
  13. To establish a budget and make expenditures and levy dues as provided in Article X of this compact.
  14. To sue and be sued.
  15. To provide for dispute resolution among compacting states.
  16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
  17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall include any recommendations that may have been adopted by the Interstate Commission.
  18. To coordinate education, training, and public awareness regarding the interstate movement of offenders for officials involved in such activity.
  19. To establish uniform standards for the reporting, collecting, and exchanging of data.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1356. Article VI; Organization and operation of the Interstate Commission.

  1. Bylaws.  The Interstate Commission shall, by a majority of the members, within 12 months of the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of this compact, including, but not limited to:
    1. establishing the fiscal year of the Interstate Commission;
    2. establishing an executive committee and such other committees as may be necessary;
    3. providing reasonable standards and procedures:
      1. for the establishment of committees; and
      2. governing any general or specific delegation of any authority or function of the Interstate Commission;
    4. providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
    5. establishing the titles and responsibilities of the officers of the Interstate Commission;
    6. providing reasonable standards and procedures for the establishment of the personnel policies and programs of the Interstate Commission; which notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the Interstate Commission;
    7. providing a mechanism for terminating the operations of the Interstate Commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment or reserving of all of its debts and obligations;
    8. providing transition rules for start up administration of the compact;
    9. establishing standards and procedures for compliance and technical assistance in carrying out the compact.
  2. Officers and staff.
    1. The Interstate Commission shall, by a majority of the members, elect from among its members a chair and a vice chair, each of whom shall have such authorities and duties as may be specified in the bylaws. The chair or, in his or her absence or disability, the vice chair, shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission, provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
    2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, and hire and supervise such other staff as may be authorized by the Interstate Commission, but shall not be a member.
  3. Corporate records of the Interstate Commission.  The Interstate Commission shall maintain its corporate books and records in accordance with the bylaws.
  4. Qualified immunity; defense and indemnification.  The members, officers, executive director and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person. The Interstate Commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the Interstate Commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of such person. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgement obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1357. Article VII; Activities of the Interstate Commission.

  1. The Interstate Commission shall meet and take such actions as are consistent with the provisions of this compact. Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the Interstate Commission, such act shall have been taken at a meeting of the Interstate Commission and shall have received an affirmative vote of a majority of the members present.
  2. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone, or other means of telecommunication or electronic communication, shall be subject to the same quorum requirements of meetings where members are present in person.
  3. The Interstate Commission shall meet at least once during each calendar year. The chair of the Interstate Commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
  4. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the Interstate Commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
  5. Public notice shall be given of all meetings, and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission shall promulgate rules consistent with the principles contained in the United States government in Sunshine Act, 5 U.S.C. Section 552(b), as may be amended. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
    1. relate solely to the Interstate Commission's internal personnel practices and procedures;
    2. disclose matters specifically exempted from disclosure by statute;
    3. disclose trade secrets or commercial or financial information which is privileged or confidential;
    4. involve accusing any person of a crime, or formally censuring any person;
    5. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. disclose investigatory records compiled for law enforcement purposes;
    7. disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;
    8. disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity;
    9. specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or proceeding.
  6. For every meeting closed pursuant to this provision, the Interstate Commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting, and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote reflected in the vote of each member on the question. All documents considered in connection with any action shall be identified in such minutes.
  7. The Interstate Commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1358. Article VIII; Rulemaking functions of the Interstate Commission.

  1. The Interstate Commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact, including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states. Rulemaking shall occur pursuant to the criteria set forth in this section and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the federal Administrative Procedure Act, 5 U.S.C. section 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. app. 2, section 1 et seq., as may be amended (hereinafter referred to as APA). All rules and amendments shall become binding as of the date specified in each rule or amendment.
  2. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
  3. When promulgating a rule, the Interstate Commission shall:
    1. publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule;
    2. allow persons to submit written data, facts, opinions, and arguments, which information shall be publicly available;
    3. provide an opportunity for an informal hearing; and
    4. promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.
  4. Not later than 60 days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence, as defined in the APA, in the rulemaking record, the court shall hold the rule unlawful and set it aside.
  5. Subjects to be addressed within 12 months after the first meeting shall, at a minimum, include:
    1. notice to victims and opportunity to be heard;
    2. offender registration and compliance;
    3. violations or returns;
    4. transfer procedures and forms;
    5. eligibility for transfer;
    6. collection of restitution and fees from offenders;
    7. the level of supervision to be provided by the receiving state;
    8. transition rules governing the operation of the compact and the Interstate Commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact;
    9. mediation, arbitration and dispute resolution.
  6. The existing rules governing the operation of the repealed previous compact superseded by this compact shall be null and void twelve (12) months after the first meeting of the Interstate Commission created hereunder.
  7. Upon determination by the Interstate Commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1359. Article IX; Oversight, enforcement and dispute resolution by the Interstate Commission.

  1. Oversight.  The Interstate Commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, the Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
  2. Dispute resolution.  The compacting states shall report to the Interstate Commission on issues or activities of concern to them, and cooperate with and support the Interstate Commission in the discharge of its duties and responsibilities. The Interstate Commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states. The Interstate Commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
  3. Enforcement.  The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Article XII of this compact provided by subsection 1362(b) of this title.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1360. Article X; Finance.

  1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
  2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff, which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state, and shall promulgate a rule binding upon all compacting states which governs said assessment.
  3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1361. Article XI; Compacting states; effective date; amendments.

  1. Any state, as defined in Article II of this compact, is eligible to become a compacting state. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2001 or upon enactment into law by the 35th jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in Interstate Commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
  2. Amendments to the compact may be proposed by the Interstate Commission for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1362. Article XII; Withdrawal; default; termination; judicial enforcement.

  1. Withdrawal.  Once effective, the compact shall continue in force and remain binding upon each and every compacting state, provided that a compacting state may withdraw from the compact (withdrawing state) by enacting a statute specifically repealing the statute which enacted the compact into law. The effective date of withdrawal shall be the effective date of such repeal. A withdrawing state shall immediately notify the chair of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt thereof. A withdrawing state shall be responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extends beyond the effective date of withdrawal. Reinstatement following withdrawal by any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
  2. Default.  If the Interstate Commission determines that any compacting state has at any time defaulted (defaulting state) in the performance of any of its obligations or responsibilities under this compact, the bylaws, or any duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
    1. fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission;
    2. remedial training and technical assistance as directed by the Interstate Commission;
    3. suspension and termination of membership in the compact.

      Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default shall include failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, Interstate Commission bylaws, or duly promulgated rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission on the defaulting state pending a cure of the default. The Interstate Commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the Interstate Commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states, and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of suspension. Within 60 days of the effective date of termination of a defaulting state, the Interstate Commission shall notify the governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state's legislature, and the state council of such termination. The defaulting state shall be responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations, the performance of which extends beyond the effective date of termination. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the Interstate Commission and the defaulting state. Reinstatement following termination of any compacting state shall require both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules of the Interstate Commission.

  3. Judicial enforcement.  The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules, and bylaws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
  4. Dissolution of the compact.  The compact shall dissolve effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state. Upon the dissolution of this compact, the compact shall become null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be terminated and any surplus funds shall be distributed in accordance with the bylaws of the Interstate Commission.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1363. Article XIII; Severability and construction.

The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable. The provisions of this compact shall be liberally constructed to effectuate its purposes.

Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

§ 1364. Article XIV; Binding effect of compact and other laws.

  1. Nothing in this compact shall prevent the enforcement of any other law of a compacting state that is not inconsistent with this compact. All compacting states' laws conflicting with this compact shall be superseded to the extent of the conflict.
  2. Binding effect of the compact.  All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, shall be binding upon the compacting states. All agreements between the Interstate Commission and the compacting states shall be binding in accordance with their terms. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction is delegated by law in effect at the time this compact becomes effective.

    Added 1999, No. 90 (Adj. Sess.), § 3, eff. April 27, 2000.

CHAPTER 23. NEW ENGLAND INTERSTATE CORRECTIONS COMPACT

History

Short title. 1961, No. 213 , § 1, provided that this chapter may be cited as the New England Interstate Corrections Compact.

Cross References

Cross references. Interstate Corrections Compact, see § 1601 et seq. of this title.

Subchapter 1. New England Interstate Corrections Compact

History

Ratification. 1961, No. 213 , § 2, provided: "The New England Interstate Corrections Compact is hereby ratified and entered into by this state with any of the other states legally joining therein in the form substantially as follows: [followed by the articles as set out in this subchapter]."

§ 1401. Purpose and policy - Article I.

The party states, desiring by common action to fully utilize and improve their institutional facilities and provide adequate programs for the confinement, treatment and rehabilitation of various types of offenders, declare that it is the policy of each of the party states to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interests of such offenders and of society and effecting economies in capital expenditures and operational costs. The purpose of this compact is to provide for the mutual development and execution of such programs of cooperation for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1201.

§ 1402. Definitions - Article II.

As used in this compact, unless the context clearly requires otherwise:

  1. "State" means a state of the United States, located in New England, to wit, Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island.
  2. "Sending state" means a state party to this compact in which conviction or court commitment was had.
  3. "Receiving state" means a state party to this compact to which an inmate is sent for confinement other than a state in which conviction or court commitment was had.
  4. "Inmate" means a male or female offender who is committed, under sentence to or confined in a penal or correctional institution.
  5. "Institutions" means any penal or correctional facility (including but not limited to a facility for the mentally ill or mentally defective) in which inmates as defined subsection (d) above may lawfully be confined.

    Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

2008. In subsec. (e), inserted "subsection" preceding "(d)" to conform reference to V.S.A. style.

Prior law. 28 V.S.A. § 1202.

§ 1403. Contracts - Article III.

  1. Each party state may make one or more contracts with any one or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states.  Any such contract shall provide for:
    1. Its duration.
    2. Payments to be made to the receiving state by the sending state for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs or treatment not reasonably included as part of normal maintenance.
    3. Participation in programs of inmate employment, if any; the disposition or crediting of any payments received by inmates on account thereof; and the crediting of proceeds from or disposal of any products resulting therefrom.
    4. Delivery and retaking of inmates.
    5. Such other matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of the sending and receiving states.
  2. Subject to legislative approval by the states concerned and prior to the construction or completion of construction of any institution or addition thereto by a party state, any other party state or states may contract therewith for the enlargement of the planned capacity of the institution or addition thereto, or for the inclusion therein of particular equipment or structures, and for the reservation of a specific per centum of the capacity of the institution to be kept available for use by inmates of the sending state or states so contracting.  Any sending state so contracting may, to the extent that monies are legally available therefor, pay to the receiving state, a reasonable sum as consideration for such enlargement of capacity, or provision of equipment or structures, and reservation of capacity.  Such payment may be in a lump sum or in installments as provided in the contract.
  3. The terms and provisions of this compact shall be a part of any contract entered into by the authority of or pursuant thereto, and nothing in any such contract shall be inconsistent therewith.

    Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1203.

§ 1404. Procedures and rights - Article IV.

  1. Whenever the duly constituted authorities in a state party to this compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state.
  2. The appropriate officials of any state party to this compact shall have access, at all reasonable times, to any institution in which it has a contractual right to confine inmates for the purpose of inspecting the facilities thereof and visiting such of its inmates as may be confined in the institution.
  3. Inmates confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state, for transfer to another institution in which the sending state may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending state; provided that the sending state shall continue to be obligated to such payments as may be required pursuant to the terms of any contract entered into under the terms of Article III.
  4. Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in institutions pursuant to this compact including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have official review of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
  5. All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving state as may be confined in the same institution.  The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.
  6. Any hearing or hearings to which an inmate confined pursuant to this compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state, or of the receiving state if authorized by the sending state.  The receiving state shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending state.  In the event such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state and a record of the hearing or hearings as prescribed by the sending state shall be made.  Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending state.  In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state.
  7. Any inmate confined pursuant to this compact shall be released within the territory of the sending state unless the inmate, and the sending and receiving states, shall agree upon release in some other place.  The sending state shall bear the cost of such return to its territory.
  8. Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his or her status changed on account of any action or proceeding in which he or she could have participated if confined in any appropriate institution of the sending state located within such state.
  9. The parent, guardian, trustee, or other person or persons entitled under the laws of the sending state to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his or her exercise of any power in respect of any inmate confined pursuant to the terms of this compact.

    Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1204.

§ 1405. Acts not reviewable in receiving state: extradition - Article V.

  1. Any decision of the sending state in respect of any matter over which it retains jurisdiction pursuant to this compact shall be conclusive upon and not reviewable within the receiving state, but if at the time the sending state seeks to remove an inmate from an institution in the receiving state there is pending against the inmate within such state any criminal charge or if the inmate is formally accused of having committed within such state a criminal offense, the inmate shall not be returned without the consent of the receiving state until discharged from prosecution or other form of proceeding, imprisonment or detention for such offense.  The duly accredited officers of the sending state shall be permitted to transport inmates pursuant to this compact through any and all states party to this compact without interference.
  2. An inmate who escapes from an institution in which he or she is confined pursuant to this compact shall be deemed a fugitive from the sending state and from the state in which the institution is situated.  In the case of an escape to a jurisdiction other than the sending or receiving state, the responsibility for institution of extradition or rendition proceedings shall be that of the sending state, but nothing contained herein shall be construed to prevent or affect the activities of officers and agencies of any jurisdiction directed toward the apprehension and return of an escapee.

    Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1205.

§ 1406. Federal aid - Article VI.

Any state party to this compact may accept federal aid for use in connection with any institution or program, the use of which is or may be affected by this compact or any contract pursuant hereto and any inmate in a receiving state pursuant to this compact may participate in any such federally aided program or activity for which the sending and receiving states have made contractual provision provided that if such program or activity is not part of the customary correctional regimen the express consent of the appropriate official of the sending state shall be required therefor.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1206.

§ 1407. Entry into force - Article VII.

This compact shall enter into force and become effective and binding upon the states so acting when it has been enacted into law by any two states from among the states of New England. Thereafter, this compact shall enter into force and become effective and binding as to any other of said states upon similar action by such state.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1207.

§ 1408. Withdrawal and termination - Article VIII.

This compact shall continue in force and remain binding upon a party state until it shall have enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the compact to the appropriate officials of all other party states. An actual withdrawal shall not take effect until one year after the notices provided in said statute have been sent. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing state shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this compact.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1208.

§ 1409. Other arrangements unaffected - Article IX.

Nothing contained in this compact shall be construed to abrogate or impair any agreement or other arrangement which a party state may have with a nonparty state for the confinement, rehabilitation or treatment of inmates nor to repeal any other laws of a party state authorizing the making of cooperative institutional arrangements.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1209.

§ 1410. Construction and severability - Article X.

The provisions of this compact shall be liberally construed and shall be severable. If any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Added 1961, No. 213 , § 2, eff. July 11, 1961.

History

Prior law. 28 V.S.A. § 1210.

Subchapter 2. Provisions Relating to New England Interstate Corrections Compact

§ 1431. Powers of Commissioner of Corrections.

The Commissioner of Corrections, acting only with the approval of the Governor who may delegate in writing his or her decision-making power under this chapter to the Commissioner of Corrections, is hereby authorized and directed to do all things necessary or incidental to the carrying out of the Compact in every particular.

Added 1961, No. 213 , § 3, eff. July 11, 1961; amended 1963, No. 118 , § 1, eff. May 28, 1963; 1967, No. 106 ,§§ 1, 2; 1981, No. 50 .

History

Amendments--1981. Inserted "who may delegate in writing his decision-making power under this chapter to the commissioner of corrections" following "governor".

Amendments--1967. Substituted "corrections" for "institutions" following "commissioner of".

Amendments--1963. Section amended generally.

Prior law. 28 V.S.A. § 1231.

CHAPTER 25. INTERSTATE AGREEMENT ON DETAINERS

Subchapter 1. Interstate Agreement on Detainers

History

Enactment. 1967, No. 47 , § 1, provided: "The Agreement on Detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:" [followed by the articles as set out in this subchapter.]

§ 1501. Purpose and policy - Article I.

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1301.

§ 1502. Definitions - Article II.

As used in this agreement:

  1. "State" shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
  2. "Sending state" shall mean a state in which a prisoner is incarcerated at the time that he or she initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof.
  3. "Receiving state" shall mean the state in which trial is to be had on an indictment, information, or complaint pursuant to Article III or Article IV hereof.

    Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Revision note. Paragraphs designated as (a), (b) and (c) were redesignated as subdivs. (1), (2) and (3) to conform section to V.S.A. style.

Prior law. 28 V.S.A. § 1302.

Cross References

Cross references. "Appropriate court" defined, see § 1531 of this title.

§ 1503. Prisoner's request for final disposition - Article III.

  1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he or she shall be brought to trial within 180 days after he or she shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his or her imprisonment and his or her request for a final disposition to be made of the indictment, information, or complaint: provided that for good cause shown in open court, the prisoner or his or her counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.  The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
  2. The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, Commissioner of Corrections, or other official having custody of him or her, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
  3. The warden, Commissioner of Corrections, or other official having custody of the prisoner shall promptly inform him or her of the source and contents of any detainer lodged against him or her and shall also inform him or her of his or her right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.
  4. Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed.  The warden, Commissioner of Corrections, or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner.  Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate.  If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
  5. Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and waiver of extradition to the receiving state to serve any sentence there imposed upon him or her, after completion of his or her term of imprisonment in the sending state.  The request for final disposition shall also constitute a consent by the prisoner to the production of his or her body in any court where his or her presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement.  Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
  6. Escape from custody by the prisoner subsequent to his or her execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.

    Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1303.

ANNOTATIONS

Analysis

1. Notice of detainer.

Failure of Vermont Department of Corrections officials to advise petitioner that a detainer had been filed against him on a New Hampshire assault charge did not violate this chapter where at the time the detainer was filed petitioner was not under a term of imprisonment, as provided in this section, but rather, was being held in custody for lack of bail following arraignment in connection with criminal charges pending against him in Vermont. In re Roessel, 136 Vt. 324, 388 A.2d 835 (1978).

2. Delivery of request.

The 180-day time limit on bringing a prisoner to trial does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him. State v. Winnie, 174 Vt. 626, 816 A.2d 545 (mem.) (2002).

Cited. State v. Crawford, 169 Vt. 371, 737 A.2d 366 (1999).

§ 1504. Officer's request for temporary custody - Article IV.

  1. The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he or she has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request; and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability either upon his or her own motion or upon motion of the prisoner.
  2. Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.  Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
  3. In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his or her counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
  4. Nothing contained in this Article shall be construed to deprive any prisoner of any right which he or she may have to contest the legality of his or her delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
  5. If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

    Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1304.

ANNOTATIONS

1. Construction.

Dismissal "with prejudice" pursuant to Interstate Agreement on Detainers barred defendant's prosecution on dismissed sexual assault and burglary charges, but did not prohibit his subsequent prosecution for trespass arising out of the same alleged criminal transaction, since newly charged crime was not a lesser included offense of dismissed charge, and collateral estoppel protection embodied in the Fifth Amendment did not apply. State v. Crawford, 169 Vt. 371, 737 A.2d 366 (1999).

§ 1505. Requirements of temporary custody - Article V.

  1. In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information, or complaint is pending against such person in order that speedy and efficient prosecution may be had.  If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement.  In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
  2. The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
    1. Proper identification and evidence of his or her authority to act for the state into whose temporary custody the prisoner is to be given.
    2. A duly certified copy of the indictment, information, or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
  3. If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
  4. The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction.  Except for his or her attendance at court and while being transported to or from any place at which his or her presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
  5. At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
  6. During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
  7. For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
  8. From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations, or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner.  The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves.  Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies, and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.

    Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1305.

§ 1506. Limitations - Article VI.

  1. In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
  2. No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

    Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1306.

§ 1507. Rules and regulations - Article VII.

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1307.

§ 1508. Enactment and withdrawal - Article VIII.

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Revision note. Substituted "affect" for "effect" in the second sentence to correct a typographical error.

Prior law. 28 V.S.A. § 1308.

§ 1509. Construction and severability - Article IX.

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence, or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Added 1967, No. 47 , § 1, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1309.

Subchapter 2. Provisions Relating to Interstate Agreement on Detainers

§ 1531. Appropriate court.

The phrase "appropriate court" as used in the Agreement on Detainers, with reference to the courts of this State, means the Superior Court where the Vermont charge is pending.

Added 1967, No. 47 , § 2, eff. March 23, 1967; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 186.

History

Amendments--2009 (Adj. Sess.) Deleted "or the district court" following "pending".

Amendments--1973 (Adj. Sess.). Substituted "superior" for "county" preceding "court where".

Prior law. 28 V.S.A. § 1331.

§ 1532. Enforcement.

All courts, departments, agencies, officers, and employees of this State and its political subdivisions shall enforce the Agreement on Detainers and cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

Added 1967, No. 47 , § 3, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1332.

§ 1533. Exception to habitual criminal law.

Nothing in this subchapter or in the Agreement on Detainers shall be construed to require the application of 13 V.S.A. § 11 , the habitual criminal law, to any person on account of any conviction had in a proceeding brought to final disposition by reason of the use of this agreement.

Added 1967, No. 47 , § 4, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1333.

§ 1534. Escape while under agreement; penalty.

A person who escapes from custody while in another state under the Agreement on Detainers shall be punished under 13 V.S.A § 1501 as though he or she had escaped from a penal institution in this State.

Added 1967, No. 47 , § 5, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1334.

§ 1535. Correctional officials; duty.

The warden or other official in charge of a penal or correctional institution in this State shall give over the person of any inmate thereof whenever so required by the operation of the Agreement on Detainers.

Added 1967, No. 47 , § 6, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1335.

§ 1536. Administrator.

The Commissioner of Corrections shall serve as central administrator of and information agent for the Agreement on Detainers.

Added 1967, No. 47 , § 7, eff. March 23, 1967; amended 1967, No. 319 (Adj. Sess.), § 4, eff. March 22, 1968.

History

Amendments--1967 (Adj. Sess.). Substituted "corrections" for "institutions" following "commissioner of".

Prior law. 28 V.S.A. § 1336.

§ 1537. Notification of agreement.

Copies of this chapter shall, upon its approval, be transmitted to the governor of each state, the attorney general and the administrator of general services of the United States, and the Council of State Governments.

Added 1967, No. 47 , § 8, eff. March 23, 1967.

History

Prior law. 28 V.S.A. § 1337.

CHAPTER 27. INTERSTATE CORRECTIONS COMPACT

History

Short title. 1969, No. 13 , § 3, provided: "Section 1 of this act [which added this chapter] may be cited as the Interstate Corrections Compact."

Entry into force. 1969, No. 13 , § 2, eff. Feb. 28, 1969, provided: "The Interstate Corrections Compact as set forth in section 1 of this act is hereby enacted into law and entered into by this state with any other states legally joining therein."

Cross References

Cross references. New England Interstate Corrections Compact, see § 1401 et seq. of this title.

Subchapter 1. The Compact

§ 1601. Purpose and policy - Article I.

The party states, desiring by common action to fully utilize and improve their institutional facilities and provide adequate programs for the confinement, treatment and rehabilitation of various types of offenders, declare that it is the policy of each of the party states to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interests of such offenders and of society and effecting economies in capital expenditures and operational costs. The purpose of this compact is to provide for the mutual development and execution of such programs of cooperation for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1401.

ANNOTATIONS

Analysis

1. Applicability.

Interstate Corrections Compact by its terms does not apply to contracts with privately operated prisons; the Compact governs contracts between states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states. Therefore, claims raised by inmates transferred pursuant to the state's contract with a private company fell outside the scope of the Compact. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

Supreme Court of Vermont has held that the Interstate Corrections Compact does not require that the policies of the sending state, with respect to issues like visitation, be applied in the receiving state. That holding is exclusively a construction of the Compact and does not suggest that Compact provisions shall be enforced even when the Compact is not applicable. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

2. Generally.

Inmates had the statutory right to use debit cards for telephone calls when housed in an out-of-state private correctional facility not pursuant to the Interstate Corrections Compact. Nichols v. Hofmann, 188 Vt. 1, 998 A.2d 1040 (2010).

§ 1602. Definitions - Article II.

As used in this compact, unless the context clearly requires otherwise:

  1. "State" means a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
  2. "Sending state" means a state party to this compact in which conviction or court commitment was had.
  3. "Receiving state" means a state party to this compact to which an inmate is sent for confinement other than a state in which conviction or court commitment was had.
  4. "Inmate" means a male or female offender who is committed, under sentence to or confined in a penal or correctional institution.
  5. "Institution" means any penal or correctional facility, including but not limited to a facility for the mentally ill or mentally defective, in which inmates as defined in subsection (d) above may lawfully be confined.

    Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

2008. In subsec. (e), inserted "subsection" preceding "(d)" to conform to V.S.A. style.

Prior law. 28 V.S.A. § 1402.

§ 1603. Contracts - Article III.

  1. Each party state may make one or more contracts with any one or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states.  Any such contract shall provide for:
    1. Its duration.
    2. Payments to be made to the receiving state by the sending state for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs, or treatment not reasonably included as part of normal maintenance.
    3. Participation in programs of inmate employment, if any; the disposition or crediting of any payments received by inmates on account thereof; and the crediting of proceeds from or disposal of any products resulting therefrom.
    4. Delivery and retaking of inmates.
    5. Such other matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of the sending and receiving states.
  2. The terms and provisions of this compact shall be a part of any contract entered into by the authority of or pursuant thereto, and nothing in any such contract shall be inconsistent therewith.

    Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1403.

ANNOTATIONS

Cited. Daye v. State, 171 Vt. 475, 769 A.2d 630 (2000).

§ 1604. Procedures and rights - Article IV.

  1. Whenever the duly constituted authorities in a state party to this compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state.
  2. The appropriate officials of any state party to this compact shall have access, at all reasonable times, to any institution in which it has a contractual right to confine inmates for the purpose of inspecting the facilities thereof and visiting such of its inmates as may be confined in the institution.
  3. Inmates confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state, for transfer to another institution in which the sending state may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending state; provided that the sending state shall continue to be obligated to such payments as may be required pursuant to the terms of any contract entered into under the terms of Article III.
  4. Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in institutions pursuant to this compact including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have official review of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
  5. All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving state as may be confined in the same institution.  The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.
  6. Any hearing or hearings to which an inmate confined pursuant to this compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state, or of the receiving state if authorized by the sending state.  The receiving state shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending state.  In the event such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state and a record of the hearing or hearings as prescribed by the sending state shall be made.  Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending state.  In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state.
  7. Any inmate confined pursuant to this compact shall be released within the territory of the sending state unless the inmate, and the sending and receiving states, shall agree upon release in some other place.  The sending state shall bear the cost of such return to its territory.
  8. Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his or her status changed on account of any action or proceeding in which he or she could have participated if confined in any appropriate institution of the sending state located within such state.
  9. The parent, guardian, trustee, or other person or persons entitled under the laws of the sending state to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his exercise of any power in respect of any inmate confined pursuant to the terms of this compact.

    Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1404.

ANNOTATIONS

1. Construction.

Contract with another state for the transfer of Vermont inmates did not violate the Interstate Corrections Compact on the basis that it delegated to the other state the right to designate the prison assignment of transferred inmates because, under the Compact, when prison officials of a party state determine that transfer of an inmate to another party state is necessary or desirable, "said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state." Daye v. State, 171 Vt. 475, 769 A.2d 630 (2000).

Out-of-state facilities' policy of limiting inmates to one adult visitor at a time does not violate requirement of the Interstate Corrections Compact that "persons entitled under the laws of the sending state to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his exercise of any power in respect to any inmate confined pursuant to the terms of this compact" because transferred inmates are subject to the disciplinary authority and rules of the receiving state. Daye v. State, 171 Vt. 475, 769 A.2d 630 (2000).

§ 1605. Acts not reviewable in receiving state: extradition - Article V.

  1. Any decision of the sending state in respect of any matter over which it retains jurisdiction pursuant to this compact shall be conclusive upon and not reviewable within the receiving state, but if at the time the sending state seeks to remove an inmate from an institution in the receiving state there is pending against the inmate within such state any criminal charge or if the inmate is formally accused of having committed within such state a criminal offense, the inmate shall not be returned without the consent of the receiving state until discharged from prosecution or other form of proceeding, imprisonment or detention for such offense.  The duly accredited officers of the sending state shall be permitted to transport inmates pursuant to this compact through any and all states party to this compact without interference.
  2. An inmate who escapes from an institution in which he is confined pursuant to this compact shall be deemed a fugitive from the sending state and from the state in which the institution is situated.  In the case of an escape to a jurisdiction other than the sending or receiving state, the responsibility for institution of extradition or rendition proceedings shall be that of the sending state, but nothing contained herein shall be construed to prevent or affect the activities of officers and agencies of any jurisdiction directed toward the apprehension and return of an escapee.

    Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1405.

§ 1606. Federal aid - Article VI.

Any state party to this compact may accept federal aid for use in connection with any institution or program, the use of which is or may be affected by this compact or any contract pursuant hereto and any inmate in a receiving state pursuant to this compact may participate in any such federally aided program or activity for which the sending and receiving states have made contractual provision, provided that if such program or activity is not part of the customary correctional regimen the express consent of the appropriate official of the sending state shall be required therefor.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1406.

§ 1607. Entry into force - Article VII.

This compact shall enter into force and become effective and binding upon the states so acting when it has been enacted into law by any two states. Thereafter, this compact shall enter into force and become effective and binding as to any other of said states upon similar action by such state.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1407.

§ 1608. Withdrawal and termination - Article VIII.

This compact shall continue in force and remain binding upon a party state until it shall have enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the compact to the appropriate officials of all other party states. An actual withdrawal shall not take effect until one year after the notices provided in said statute have been sent. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing state shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this compact.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1408.

§ 1609. Other arrangements unaffected - Article IX.

Nothing contained in this compact shall be construed to abrogate or impair any agreement or other arrangement which a party state may have with a nonparty state for the confinement, rehabilitation, or treatment of inmates nor to repeal any other laws of a party state authorizing the making of cooperative institutional arrangements.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1409.

§ 1610. Construction and severability - Article X.

The provisions of this compact shall be liberally construed and shall be severable. If any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1410.

Subchapter 2. Provision Relating to the Compact

§ 1621. Powers of Commissioner of Corrections.

The Commissioner of Corrections is hereby authorized and directed to do all things necessary or incidental to the carrying out of the compact in every particular and he or she may in his or her discretion delegate this authority to another appropriate official.

Added 1969, No. 13 , § 1, eff. Feb. 28, 1969.

History

Prior law. 28 V.S.A. § 1421.