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Vermont: Retaliatory Furlough Denial Reviewable on Rule 75 Motion

Vermont: Retaliatory Furlough Denial Reviewable on Rule 75 Motion

by Mark Wilson

The Vermont Supreme Court has reversed a lower court’s denial of a prisoner’s motion to reopen his post-conviction relief case alleging the retaliatory denial of a furlough.

Before 2001, furlough eligibility for Vermont prisoners was not contingent on their completion of a minimum amount of their sentence. 28 V.S.A. § 808 (2000). In 2001, however, the legislature amended the law, making completion of a minimum term a prerequisite to conditional reentry furloughs. 28 V.S.A. § 808(a)(6)(2013).

Prisoner Roy Girouard was convicted of murder in 1975 and sentenced to life without a minimum term. The Vermont Department of Corrections (DOC) refused to consider him for a furlough because he lacked a minimum sentence.

Girouard filed a post-conviction relief action under Rule 75 of the Vermont Rules of Civil Procedure, alleging the DOC’s refusal to consider him for a furlough under the 2001 amendment to § 808 violated the U.S. Constitution’s ex post facto prohibition.

The superior court dismissed, concluding that the 2001 amendment did not increase the penalty for Girouard’s offense. The state Supreme Court reversed and remanded for further factual development to determine if, as applied to Girouard, the amended statute in fact created a significant risk of increasing his punishment. See: Girouard v. Hofmann, 186 Vt. 153, 981 A.2d 419 (Vt. 2009) (Girouard I).

On December 18, 2009, the superior court concluded that Girouard’s “inability to obtain furlough release because he lacks a minimum sentence impacts the likelihood of his parole and therefore ‘creates a significant risk of lengthening his period of incarceration.’” The court ordered DOC officials to consider Girouard’s furlough eligibility under the pre-2001 version of § 808.

In response, the DOC required Girouard to complete “eight more program participation credits of Cognitive Self Change (CSC)” as a prerequisite to furlough eligibility. He refused, asserting that he had completed his CSC programming requirements in 2007. As a result, the DOC refused to consider Girouard for furloughs. The Vermont Parole Board then denied him parole in 2011 due to his failure to comply with the DOC’s programming requirements.

In February 2012, Girouard moved to reopen his previous Rule 75 action. Noting that before the superior court’s December 2009 decision prison officials had determined he satisfied all furlough requirements, Girouard alleged that the DOC’s reasons to subsequently deny his furlough were pretextual and retaliatory.

The superior court denied Girouard’s motion, concluding that the “DOC’s decision to require additional CSC programming prior to furlough was ... wholly unreviewable under Rule 75.” He appealed.

The Vermont Supreme Court treated the denial as a dismissal for failure to state a claim upon which relief can be granted, and reversed the lower court. Girouard “alleges that the DOC used its programming requirements to retaliate against him for pursuing his case in Girouard I by preventing him from attaining the furlough release at issue in that case,” the Court observed. “Such retaliation, if established, would clearly be unconstitutional.” The case was remanded for further proceedings. See: In re Girouard, 2014 VT 74, 102 A.3d 1079 (Vt. 2014).


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Related legal cases

In re Girouard

Girouard v. Hofmann