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Vermont Supreme Court Keeps State Prisoner’s Challenge Alive to DOC’s Use of Expunged Convictions in Classification Decision

by Matt Clarke

On January 21, 2022, the Vermont Supreme Court remanded a case to the state Department of Corrections (DOC) so that it could respond on the record to a prisoner’s allegations it improperly used his expunged convictions to make classification decisions that would ultimately affect his release, in violation of the state’s Expungement Statute, Vt. Stat. Ann. tit. 13, § 7606.

The prisoner, Joseph Bruyette, had served 29 years of a 45-to-85-year sentence for felony burglary and sexual assault when a June 2019 case staffing report referenced felony convictions which predated his current sentence, but which were not old enough to be expunged until a month later in July 2019, pursuant to § 7606. As a result, using the Level of Service Inventory (LSI) and Violence Risk Appraisal Guide (VRAG) scoring methodologies, he was classified a “Level C offender” under DOC Directive 371.10.

Bruyette was concerned that the expunged felonies might be used at his next case staffing, so pursuant to 3 V.S.A. § 808, he petitioned DOC for a declaratory ruling whether expunged felonies and evaluations based on them could be used. DOC responded with a ruling that it could use felonies expunged while the prisoner was in DOC custody and would continue to do so in making programming, classification and release decisions.

Aided by Defender General Matthew F. Valerio and Annie Manhardt of the Prisoners’ Rights Office in Montpellier, Bruyette filed an administrative appeal of DOC’s declaratory ruling in the Vermont Supreme Court. In response, DOC filed a brief that did not address the merits of the case but rather asked the Court to dismiss the appeal for lack of standing because the agency had subsequently reclassified Bruyette in August 2021 without relying on the expunged convictions. In doing so, the agency explained, it had replaced its old LSI scoring methodology with the Ohio Risk Assessment System (ORAS).

Bruyette pointed out that the “Prior Supervision History” section of his June 2021 ORAS case-staffing form referenced the expunged records, though they were not referenced in the VRAG case-staffing from the same time.

DOC said it then unilaterally revised Bruyette’s ORAS and removed references to the expunged convictions from its case-staffing form in August 2021. That decreased his ORAS score from 19 to 18, but that was still in the “high” category, so he remained classified a “Level C

In a motion to remand for further development of the record, Bruyette disputed the DOC’s claims, noting that his August 2021 ORAS report counted expunged convictions in the number of prior convictions. Moreover, his December 2020 VRAG assessment used expunged convictions in scoring prior criminal history, prior prison admissions, and antisociality.

The Court agreed that remand was appropriate to develop a factual record to determine whether Bruyette has standing to bring an appeal. It was noted that DOC wavered in its position, saying first it would rely on the expunged convictions and later that it hadn’t done so, which was a fact Bruyette then disputed. Further, he has a right to know whether DOC continues to improperly use expunged convictions, the Court added. Therefore, the case was remanded for additional hearing. See: In re Bruyette, 2022 VT 3. 

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