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Vermont Supreme Court Provides Prisoner No Relief for Denial of Earned-Time Credits

On January 27, 2023, the Vermont Supreme Court held that a state prisoner was not entitled to benefit from an earned-time program because he committed his offense after the program was authorized but sentenced before it went into effect. Finding no ex post facto violation in this Catch-22, the Court dismissed K.C. Myers’ appeal.

In June 2019, Gov. Phil Scott (R) signed into law a bill that required the state Department of Corrections (DOC) to establish a program for prisoners to earn time credits to reduce their sentences. DOC missed the deadline to implement the program, leading to enactment of another bill that made it effective on January 1, 2021. That bill specified that eligible prisoners who were not found guilty of a major infraction would receive monthly earned-time credits.

Myers was arrested for burglary in August 2019, almost two months after the first earned-time bill became law. He pleaded guilty and was sentenced in May 2020, before the earned-time program specified by the second bill became effective. He was also serving a prior sentence for lewd and lascivious conduct with a child.

The earned-time program was amended, effective April 26, 2021, to exclude prisoners with certain disqualifying offenses from receiving earned-time after that date, although they retained any previous earned time. As Myers’ sex-related offense was disqualifying, he was barred from receiving any further earned-time on either of his sentences after the amendment.

Myers filed suit raising ex post facto and due process claims, as well as alleging violations of the Common Benefits Clause in the Vermont Constitution. The trial court granted partial summary judgment to the state, finding no ex post facto violation.

In Myers’ interlocutory appeal, the state Supreme Court explained that to show an ex post facto violation, a law must be retrospective (i.e., retroactive in effect), and “‘must disadvantage the offender affected by it’ by altering the definition of criminal conduct or increasing the punishment for the crime,” citing Lynce v. Mathis, 519 U.S. 433 (1997) and Weaver v. Graham, 450 U.S. 24 (1981). With respect to Myers, the Court held the earned-time program had not been established as of August 2019 when he committed his offense; although the program was authorized and signed into law, it was not in effect until January 1, 2021.

“Petitioner has not cited any binding caselaw supporting the contention that the pertinent date for an ex-post-facto violation is the enactment date of the statute as opposed to the effective date of the program it creates,” the Supreme Court wrote.

Specifically, when he committed his offense, “there was no earned-time program of which he could have availed himself,” the Court said. But hadn’t the law creating the program been passed two months earlier? True, the Court said, but that “was merely a statute directing that such a program be created.” As the earned-time program needed to be in effect at the time Myers committed his offense to support an ex post facto claim, the trial court’s partial summary judgment order was affirmed. Myers was represented by Defender General Matthew F. Valerio and attorney Annie Manhardt from Prisoner’s Rights Office in Montpelier. See: Myers v. Baker, 2023 VT 7.  

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Related legal case

Myers v. Baker