End DOC discretion around "approved housing"
By Suzi Wizowaty, submitted in response to Vt DOC's request for public comment on its proposed directive about housing.
The most recently proposed rule on determining whether or not to release on offender on furlough without approved housing would seem to offer a small improvement. We know too many people are held for lack of approved housing. Unfortunately, the same fundamental flaws remain as in the original statute and subsequent rule: in brief, the decision about release at the minimum sentence is still left up to the discretion of DOC staff, in direct contravention of the intention of the sentencing court.
The current statute, 28 V.S.A. 808(f), already states that non-violent offenders cannot be held solely for lack of suitable housing as long as “public safety and the best interests of the offender will be served by reentering the community on furlough.” These potential exceptions would seem on the surface to make perfect sense. The problem is that these ostensibly reasonable criteria have led to decisions that are incomprehensible to inmates and perplexing to advocates—and arguably reflect abuses of power.
The proposed rule spells out why an offender might still be released even without approved housing, and it lists specific conditions that DOC may consider in making such a determination. But merely citing “an unreasonable risk to public safety” or the “best interests of the offender” still allows DOC staff to deny release at any time.
Sadly, any decision that is inherently subjective is unacceptably flawed. Let us explain. Public safety? The directive concerns non-violent offenders (who in any case, remember, have reached the minimum sentence set by the court). The best interests of the offender? Who among us wants the state determining what is in our best interest?
Only exceptions based on objective criteria can be fair; there is simply no other way to avoid the influence of bias or personal animosities. The court has established a minimum sentence after which an inmate deserves to be released, in the absence of additional reasons to hold him/her. These reasons must be able to objectively assessed, independent of a caseworker’s judgment.
The larger issue here is that both the current statute and its subsequent, related directives only apply to nonviolent offenders. It is worth remembering that regardless of the underlying crime, the court has made a determination about the length of a minimum sentence. Setting additional obstacles to an inmate’s release that lengthen a sentence—such as the questionable determination of what is in the inmate’s best interest (staying longer in prison?)—usurps the judge’s role. There is a reason we have three branches of government.
VCJR urges DOC to limit restrictions on release at an inmate’s minimum to the two factors that can be objectively assessed: (1) whether or not the offender has completed any required programming related to his or her crime and sentence, and (2) whether the offender has a major disciplinary report that suggests a risk to public safety. Caseworkers have a moral and public safety obligation to help inmates find housing wherever possible, but DOC must not hold anyone without such housing.
Finally, we strongly urge that DOC support changing the statute to include violent offenders who have met their minimum sentences, and hold them to the same accountability standards for the same reasons outlined above: in every case, the court has set a minimum sentence for a reason.