2016 VT 104
By Elizabeth Kruska
Mr. Chandler, the petitioner, thought he was getting one thing. In reality, he got something different. I totally get where he’s coming from. That doesn’t mean he’s legally correct. SCOV agrees he isn’t legally correct and affirms the lower court.
Here’s what happened. Mr. Chandler got charged with some crimes—some bad ones—in the late 90s. Aggravated sexual assault, kidnapping, and burglary formed the Chandler trifecta of criminal activity. Full disclosure: I use horse-betting references because I love horse racing, and I have a fantasy list of race horse names; aggravated assault, kidnapping, and burglary are not on that list. Well, maybe Burglary could be a good horse name, but I’d really need the right circumstances to suggest that. I will gladly discuss Kentucky Derby prospects with anyone who is interested.
Anyway, back in the spring of 1997 (when Silver Charm won the Derby), Mr. Chandler got sentenced to 25-60 years to serve for his offenses. This is a big sentence.
At his sentencing hearing, a person from the Department of Corrections testified about how Mr. Chandler would be eligible for release in around 2013 and how he would be assessed for sex-offender treatment at that point. Also of note is at that time the only form of release on the books was parole. People would serve up to their minimums (less good time, because that was a thing back in the 90s). At the minimum, people could be released. It was never a guarantee that Chandler would get released at his minimum, but he would be eligible to be assessed for the sex-offender-treatment program at that point.
So, going into his sentencing hearing, it’s fair to say that Mr. Chandler believed that he would serve around 25 years on his minimum, get assessed for treatment, and get paroled into the community.
As often happens, though, the law changed. As often happens in Vermont, the law changed substantively with respect to criminal defendants. Furlough was created, good time was eliminated, and sex-offender classifications became a thing. I don’t want to get into all the ins and outs of furlough and the various early releases, because it can be confusing, would not necessarily apply in this case. The overall end result, though, is that since 1997, the practice has become not to parole an offender at his or her minimum, but to furlough that person out of the jail and into the community, and to have the person under strict supervision. After a while, if things go okay (programming is done appropriately, no violations are committed, etc.), someone can then be paroled and serve out the rest of his or her sentence in the community on parole status.
[And this part isn’t in the opinion, but I just know this—around the time good time was eliminated (2005ish), everyone with sentences imposed under old rules got their sentences “trued” and got any good time added that they would have been eligible to get. I mention this only because I know we’re talking about someone with a minimum of sentence of 25 years and it hasn’t been 25 years since he was sentenced. He would have been credited his good time and had his minimum recalculated several years ago, and it would have brought him below 25 "actual" years.]
The other thing is that DOC now does classifications for offenders to determine release. In 2008 Mr. Chandler initially got assessed as a Level B offender, which means he was in the medium risk group. Based on his score and his underlying offenses, he would have been eligible to start the in-house sex offender program. If this all went satisfactorily and his risks could be planned for appropriately, he could be eligible for furlough at or about his minimum.
Then guess what? The law changed again. The new law that went into effect in 2009 said that high-risk sex offenders couldn’t be released until they’d completed 70% of their maximum sentences. So, Mr. Chandler got reassessed and came out as a high risk, or Level C offender. That means instead of being able to do his program just prior to the 25 year mark, he would be confined for 70% of 60 years, or 42 years. Then maybe he could do the program and if he did it in an “exemplary” fashion and risks could be contained, then maybe he could get out.
Then he got reassessed and was reassigned Level B, but DOC decided that he wasn’t eligible for release anyway because the crimes he committed were far too serious to be considered for release. Then they said he was high risk again. This is like watching tennis.
This is not what he signed up for. He filed an action in the superior court, saying that all these rules enacted subsequent to his sentencing, and which prevented him from being released, were unconstitutional and violated the ex post facto clause. He could only potentially be eligible for release if he could do the program, but DOC wouldn’t let him do the program. His position was that at his sentencing hearing there was discussion of him doing this program, and now DOC was moving the wire, effectively preventing him from crossing it. This is my last horse racing reference in this summary, I promise.
Both he and the Department of Corrections filed motions for summary judgment. Everybody now, sing along with me: summary judgment is appropriate where the there is no genuine issue of material fact, and when the facts, taken in the light most favorable to the non-moving party, tend to show that the movant is entitled to a judgment of law. The superior court granted the DOC’s motion, and Mr. Chandler appeals. The Defender General’s office files an amicus, or friend of the court, brief in support of Mr. Chandler’s position, but does not represent him.
Mr. Chandler reiterates his ex post facto argument and refines it a little. He argues that the facts DOC is using to keep him in jail are also the same facts they were using to subject him to the 70% rule, which SCOV previously invalidated. DOC says, “Hey, the policy we used wasn’t a statute and it also wasn’t a rule made under the Administrative Procedures Act, so the ex post facto clause doesn’t apply.”
SCOV doesn’t exactly agree with DOC’s position that it’s immune from the ex post facto clause, but does agree that summary judgment for DOC was appropriate.
I now realize I’ve referred to the ex post facto clause a bunch and haven’t explained it. It’s a prohibition on changing punishments for preexisting criminal acts. Where there are potential problems for this is where there is potential for increased punishments. It comes up a lot in terms of changes to parole and parole review. The US Supreme Court has examined this issue in several cases. It has ruled that if a petitioner makes a challenge to a change in law under the ex post facto clause, the burden is on the petitioner to show that by evidence drawn from the rule’s practical application by the agency charged with exercising discretion, that the retroactive application will result in longer periods of incarceration than before.
So, to make an example, let’s say the initial rule says prisoners can have their initial parole hearing at their minimums. Then a rule is made that says they can’t have their initial parole hearings until three years past their minimums. A prisoner challenging this rule has to show that in practice, this new rule would cause longer incarceration than under the old rule. Depending on how things normally happen in that jurisdiction, maybe the prisoner can show that and maybe not.
Using that same test, SCOV says that Mr. Chandler doesn’t meet his burden in this case. SCOV rules that the changes in the law did not have any effect on Mr. Chandler’s length of incarceration. The Department of Corrections has wide latitude in making programming decisions and determining whether someone is eligible for release. DOC is allowed to factor in risk and dangerousness issues.
At the time Chandler was sentenced the only available release, other than a very limited 15-day window to set up work and housing, was parole. And even then, the parole board had very wide discretion in whether or not to release someone. Chandler couldn’t possibly say that he was going to be guaranteed parole. And at his sentencing hearing, the DOC employee who testified said Chandler would be eligible to be assessed for treatment, not that he would get in or be guaranteed a seat in the class.
So, in a nutshell, SCOV acknowledges that things changed, but that since Chandler can’t point to actual facts showing that he was going to be incarcerated longer than he bargained for, there can’t be a showing of an ex post facto violation.
The Defender General’s Office joins as a friend of the court and says there actually are some material facts still in dispute. The DG points out that since the Brooke Bennett case in 2009, the reactivity pendulum has swung way over in favor of long-term incarceration for people with sex offenses. The DG argues there’s sort of an unwritten policy within the Department of Corrections to keep sex offenders in jail as long as possible, regardless of the person’s sentence. SCOV sort of avoids this and says these facts really aren’t in dispute and there’s no impact on their decision, since Chandler didn’t meet his burden in his ex post facto argument.