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Vermont Parole Law Change Violates Ex Post Facto Clause

On November 2, 2010, a Vermont state court held that changes to Vermont’s parole laws requiring certain prisoners to serve 70% of their maximum sentences violate the Ex Post Facto Clause of the U.S. Constitution when applied to prisoners whose crimes occurred prior to the law’s enactment.

In 2009, the Vermont legislature enacted 28 V.S.A. § 204b, which rendered “high-risk sex offenders” ineligible for “parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence.” Previously, such prisoners were eligible for furlough or parole before they served 70% of their sentences.

Robert Wood, Mark Benjamin, Steve Kinney and Jason Blow, Vermont state prisoners convicted of crimes that occurred before the new parole law was enacted, were nonetheless subjected to the 70% rule change. They filed separate suits in Vermont state court challenging the retroactive application of § 204b as a violation of the U.S. Constitution’s prohibition against ex post facto laws.

The court found that the prisoners’ original effective sentences were less than 70% of their maximum sentences. The application of the 70% requirement increased their minimum sentence to be served before becoming eligible for furlough or parole by as much as 87%. “There can be no question that the trial judges who sentenced Plaintiffs anticipated furlough and parole eligibility when determining their minimums and maximums. Nor can there be any serious debate that the delay of parole eligibility – and probably some forms of furlough eligibility – for a protracted time typically will be considered an ex post facto violation. The retrospective application of the 70% rule plainly renders current law ‘more onerous than the law in effect on the date of the offense,’ and is thus an ex post facto violation.”

The court rejected the state’s argument that it was speculative whether prisoners would receive parole or a furlough before serving 70% of their sentences. “Plaintiffs are not required to prove the particular effect of the 70% rule on them personally to show an ex post facto violation,” the court wrote. Rather, the proper focus of the inquiry is the more-than-speculative result that the statutory change eliminates or significantly delays an opportunity for early release. See: Wood v. Palito, Benjamin v. Palito, Kinney v. Palito and Blow v. Palito, Docket Nos. 947-12-09, 963-12-09, 102-2-10 and 121-2-10, Vermont Superior Court (Washington Unit).

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Related legal case

Wood v. Palito, Benjamin v. Palito, Kinney v. Palito and Blow v. Palito