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Vermont’s Policy of Sending Prisoners Out-of-State Found Unconstitutional

A Vermont Superior Court held the policy of the Vermont Department of Corrections (VDOC) to send hundreds of male prisoners to out-of-state facilities, regardless of whether they have close bonds with their young children, while keeping all women prisoners at in-state facilities, violates the equal protection clause and common benefits clause of the state constitution.

VDOC prisoner Michael Carpenter was transferred to the Lee Adjustment Center in Kentucky, operated by Corrections Corporation of America (CCA), under a policy that was purportedly created to alleviate overcrowding in Vermont prisons. Carpenter is the father of twin boys who were four-and-a-half years old at the time he was transferred.

From their birth, Carpenter was with his sons every day caring for their needs. He was described as a “natural parent” by the boys’ mother, who said, “they wanted him more than me.” When he was first incarcerated the children were brought to visit Carpenter each week.

After he was sent to the CCA facility in Kentucky to serve his sentence, however, it was impossible for him to see his children. Carpenter filed suit, asking the court to issue declaratory relief and order the VDOC to return him to Vermont.

The Vermont Superior Court held a trial on June 11, 2014. “Carpenter is not presenting a due process claim,” the court noted. “Rather his focus is on how he has been treated relative to other inmates of different gender.” The court found that the VDOC’s “policy of sending only men out of state is, for all practical purposes, equivalent to barring all contact with the inmates’ minor children.”

The VDOC contended its policy was necessary to ease overcrowding at in-state men’s prisons, and argued that transferring women prisoners would not assist in achieving that goal. The court found the VDOC had failed to meet its higher burden to justify its discrimination against Carpenter by effectively ending contact with his children because he is male.

No evidence was presented about the level of overcrowding that would exist if the out-of-state transfers stopped. The court rejected the VDOC’s distinction between male and female prisoners on the basis of statistics related to how many women tend to be sole custodians of their minor children before going to prison, because it was “a post hoc justification” and there was no evidence to support it.

The Superior Court found the VDOC’s objective of reducing the prison population was not met by “sending men who are parents of minor children” to out-of-state facilities. Prison officials did not even know how many out-of-state prisoners had minor children or if they would choose to have visitation with their children if they remained in Vermont.

“[T]he evidence does not show that making it impossible for male inmates to see their minor children rationally advances any goal of the government,” the court wrote, “and sending men out of state without considering their parental status is an overinclusive classification.”

Accordingly, in an August 13, 2014 order, the Superior Court held that the VDOC’s policy of transferring only male prisoners to out-of-state facilities violates the equal protection clause and common benefits clause under the Vermont Constitution. As relief, it ordered state prison officials “to promptly return Carpenter to a Vermont institution where he can see his young children.” The state decided not to appeal the order, which only affected Carpenter. See: Carpenter v. Pallito, Vermont Superior Court, Washington Unit, Docket No. 531-9-13 Wncv.

In June 2015 the VDOC removed all of its prisoners from the CCA-operated facility in Kentucky, plus several dozen others from another CCA prison in Arizona. Rather than being returning home, however, the 280 prisoners were transferred to the North Lake Correctional Facility in Baldwin, Michigan – a prison managed by The GEO Group. GEO had extensively lobbied Michigan officials to reopen the North Lake facility, which had closed in 2011. The company’s contract with Vermont allows the state to send up to 675 prisoners to the GEO prison at a rate of $61.80 per prisoner per diem. GEO Group also has a contract with Washington State to house up to 1,000 prisoners at North Lake, but no Washington prisoners have yet been sent to the Michigan facility.

Ironically, Vermont’s official state motto is “Freedom and Unity.”

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Related legal case

Carpenter v. Pallito