Courts reviewing calls for more prisoners to be released from Vermont prisons due to COVID-19

The COVID-19 outbreak in Vermont is unfolding at a measured pace – so far avoiding a surge that officials credit to social distancing efforts. But concerns over a concentration of cases in at least one Vermont prison have advocates for the state’s incarcerated population of 1,398 inmates calling for more prisoners to be released.

Two cases playing out in state and federal courts are bringing this issue into focus.

According to a Vermont Department of Corrections April 20 update, 38 inmates and 16 staff members have tested positive for COVID-19 at the Northwest State Correctional Facility in St. Albans. 

In order to curb the spread of the virus at the St. Albans facility, corrections staff have transferred 28 inmates who are positive for COVID-19 but not in need of hospital care to the Northeast Correctional Complex in St. Johnsbury, a decision that sparked criticism from local government officials in that community.

There is good reason to closely examine the prisons in Vermont, as COVID-19 spreads in prisons around the country. For instance, Rikers Island Jail in New York City has reported wide outbreaks. As of a week ago, at Cook County Jail in Chicago, one of the largest jails in the country, more than 500 individuals had tested positive with detainees accounting for two-thirds of the cases.  

Part of Vermont’s response has been to release inmates. State corrections data show that 255 inmates have been released from six correctional facilities since March 13.

Prisoners are at risk due to crowded living conditions that make social distancing difficult, and in many cases impossible. Prisoner advocates say more inmates should be released to curb the spread of coronavirus in tight quarters among high-risk individuals behind bars.

“It is too late for the best-case scenario – there has already been an outbreak at one of the jails,” said Annemarie Manhardt, with the Vermont Prisoners’ Rights Office. “Ideally, it would not spread to the more vulnerable members of the jail. By releasing more members safely into the community, this would encourage that.”

Considering early release for more inmates

The Vermont Prisoners’ Rights Office last week filed suit against the Department of Corrections in Stacy et. al. v Baker. The case was originally filed in Washington County Superior Court’s Civil Division.

The suit represents 36 inmates held in Vermont prisons who are requesting injunctive relief which essentially calls for their immediate release. These inmates have reached their minimum sentence length, are eligible for furlough, and are of an age or medical status that make them especially vulnerable, according to the lawsuit. 

The petition claims that keeping these individuals incarcerated during the COVID-19 pandemic violates both the Vermont Constitution and the Eighth Amendment of the U.S. Constitution.

The petition notes that these individuals can only be released under Vermont Department of Corrections discretion, as there is no other party which allows for their immediate or near immediate release. The petition meticulously lays out the age, medical conditions of each inmate, as well where they could reside upon their immediate release.

Additionally, the petition cites instances where inmates have been placed in contaminated conditions with other COVID-19 positive inmates, and the corrections department’s inability to properly curb the spread of the virus. Continuing to hold these inmates violates the Vermont Constitution’s ban on cruel and unusual punishment, the petition argues. 

James Baker, Vermont’s commissioner of the Department of Corrections, is the defendant in the case. He is represented by the state attorney general’s office which has filed an opposition to the injunctive relief suit.

In arguing against the request to release the inmates, the state points to improvements made at correctional facilities to mitigate the spread of the virus such as banning visits and increasing sanitation measures. The state also cites the various serious felony crimes for which a number of the petitioners have been convicted as reasons against their release. The opposition memo states that immediate release of the 36 prisoners would present “an unacceptable risk to the public.”

The state questions whether the petitioners can meet the legal standards of their claim and whether they can prove their case violates the Eighth Amendment. It suggests that the plaintiffs revise their case to a formal complaint rather than a federal court case.

The suit was moved to the U.S. District Court where Chief Judge Geoffrey W. Crawford held a hearing on Wednesday, April 22. 

The plaintiffs have since filed a motion to remove the 8th Amendment violation claim and return the case back to a state court. Lawyers for the plaintiffs have requested discovery in the case, including inmate medical records from the state corrections department.

Second case focuses on those held before trials

As the case moves along, the prisoners' advocates are gaining support from some high-profile allies.

On Tuesday, April 21, the National Association of Criminal Defense Lawyers and the Vermont Chapter of the American Civil Liberties Union filed an amicus brief in support of the defendant in a COVID-19-related case, State v. Sanville in Vermont Superior Court Windham Division.

Attorneys for Sanville are seeking a reassessment of conditions of release for his pretrial detention status. The state is arguing that it should continue to hold Sanville.

This case is important because it may set a precedent that could factor into determining the release of other inmates being held before their trials.

Hearings were held on April 21-22 with evidence focused on prison conditions and medical treatment of inmates in prison. More evidence is expected in court on April 27 before Judge John Treadwell. 

The memorandum filed by the national defense lawyers and the Vermont ACLU supports all of the consolidated cases regarding those inmates seeking release on pretrial detention status. They cite great concerns for the ability of Vermont jails to properly maintain the spread of COVID-19 and care for inmates who become sick.

The memorandum notes that the infection rate for COVID-19 among Vermont inmates is significantly higher than the infection rate in the general population: 2.7% among inmates compared with 0.1% overall according to the petition filed by the Vermont Prisoners’ Rights Office. It relies on data coming from the New York Times and the Vermont Department of Corrections.

Manhardt explained that the focus should be on fewer prisoners, with fewer shared cells and less shared space. “Releasing more inmates not only creates a safer space in terms of social distancing guidelines, but it also allows for a greater amount of PPE, hand sanitizer, and other essential items to go around between remaining inmates in the prison,” Manhardt said.

The calls to free more prisoners come as the Vermont Department of Corrections has already released one-fifth of those at Chittenden Regional Correctional Facility, Vermont’s only women’s prison, according to Judy Henkin, deputy commissioner of corrections. Henkin agreed that this has been essential to “allow inmates to social distance better, and make sure all the inmates have access to masks.”

Henkin explained how corrections officials decide who to release as a result of the pandemic. “Well, the first people that go out are the people who are already close to being out, and those who were doing their last programs but now can’t finish. Those who were in six months of their release date are at the top of the list,” she said.

Just reviewing each case based on medical concerns is challenging because so many inmates have health issues.

“A large percentage of the population [has] some sort of medical reason why they would be more vulnerable, whether it be age, asthma, obesity...Inmates are less healthy in general than the general public,” Henkin said. “To be released under medical furlough, the law says that an inmate must have a terminal illness that renders them unable to physically be a danger to the community. So legally, people that are just vulnerable are not going to get out on that alone.”   
           

Weighing the rules against a pandemic

The way rules are currently structured, corrections officials may not have a clear guideline to release some prisoners, Henkin said. “That ability to release for medical susceptibility would have to be made at a different level, either by the Legislature or through an executive order from the governor,” she added.

Furthermore, current rules require that the state can only release inmates who have been sentenced. A court would need to decide whether to release detainees who have not yet had a trial or a sentence, Henkin said.

Manhardt explained that defense attorneys and the Prisoners’ Rights Office are trying to help fix this. “There have been motions filed by defense attorneys to reassess the bail for clients being held in pretrial detention status, asking that they are released in light of the concerns for the coronavirus,” she said.

While some prosecutors have been agreeable to releasing inmates in these circumstances, so far there isn’t total agreement. “Some have been fighting to keep certain inmates held on detention status,” she said.

For those inmates who do meet the threshold for release, there may be some mental health benefits. “We have some very traumatized people who are now being asked to self-isolate in a place where they are already isolated from the community and their family,” Henkin said.

Along those lines, corrections officials also have taken steps to assist inmates who remain behind bars such as making phone and video calls to loved ones more accessible after visits have been prohibited in response to COVID-19.

With the current stay-at-home order in effect through May 15, Vermonters continue to adhere to public health guidelines to check the spread of COVID-19. Prisoner advocates say paying attention to the state’s correctional facilities to reduce the population in those conditions can have benefits beyond the confines of the prisons.   

“It is very important to pay attention to the inmate population because ultimately the inmate population is a part of a community and affects our community,” Manhardt said. “The correctional officers who go to work every day at the jail return home to their families. If the inmate population becomes infected that would mean that a large number of [hospital] beds ... would be taken for these inmates who are sick.”

Sheldon Burnell is a senior sociology major at the University of Vermont.