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| This is also known as a window. |
Sullivan v. Menard
By: Elizabeth Kruska
Not everyone spends a lot of time in criminal court. Even fewer people spend a lot of time handling post-conviction issues that arise. You’d think with the rise of true-crime series, like Making a Murderer or podcasts like Serial and Undisclosed(and all the eleventy jillion others out there; I kid, many of them are interesting) that everyone and their sister is somehow suddenly involved in filing habeas corpus and post-conviction relief cases. But that’s not exactly the case. And although we’ve got great lawyers handling post-conviction relief cases (I may be biased, many of them are my friends), it’s not always the buzz-worthy media-type cases that get filed.
This is such a case. That doesn’t mean it isn’t important, because it is. And not only that, it’s got an interesting problem that’s a little hard to square.
So, here’s the deal. In Vermont someone gets sentenced after a conviction. And lest there be a thought that a 1 year jail sentence means a weekend because of some miracle of “good time” let’s put that to rest. That’s not what happens. In Vermont we have indeterminate sentencing, which means every sentence needs a minimum and a maximum. Someone could get a sentence of 1-2 years. That means they serve up to 1 year in jail and at their minimum are eligible to be released. Then, for the balance of that, the person is still supervised by the Department of Corrections.
There’s a rule, though, that allows certain people to potentially be released prior to their minimum sentences on what’s known as “reintegration furlough.” This is a release that some sentenced defendants may get. Here’s the trick: the Department of Corrections made rules about who is eligible, and also about how to award reintegration furlough to certain defendants. This generally happens a few months prior to a defendant’s release. If you ever hear of a sentenced defendant talking about their “window” this is what they mean. There’s a small window of time prior to the minimum where someone can be released a little early.
Defendants with violent crimes generally aren’t eligible. The defendant here was convicted of a crime that falls under that category.
He hoped to get released on reintegration furlough prior to his minimum sentence, but that got denied. He then filed a motion in the Civil Division, seeking review of the administrative agency’s action. That got denied and he appealed to the Supreme Court.
While the appeal was pending, he hit his minimum sentence and was paroled a little over a week later. That means he left jail, and is now under the supervision of the Department of Corrections as a parolee.
The state moved to dismiss the appeal as moot, because the relief the defendant was seeking could no longer be granted. He couldn’t get reintegration furlough if he was already out of jail on parole, which is a different supervision status.
The defendant wasn’t pleased by this, and asked SCOV to consider it anyway, and said there was an important public interest in getting the reintegration furlough issue nailed down.
SCOV declined to make a public interest exception to the doctrine of mootness, and dismissed the appeal.
When there’s no live dispute anymore, a case becomes moot and there’s no reason for the case to continue to be in court. Let me give you an example. A few years ago, I represented a man who wanted to get divorced from his wife. While the divorce was pending he suffered a fairly serious medical issue and unfortunately, he died. Our divorce case now was moot. There were no longer two parties who needed a divorce dispute resolved.
The defendant in this case argued that the case ought to go forward because this same issue might come up again for him. He essentially argued that he might get in more trouble, and then because of the conviction in this case he would again be precluded from being awarded reintegration furlough. SCOV says this is too speculative.
He also raised, and I think this is the more interesting issue, the fact that because of the timing of how all this works, that aggrieved prisoners who are denied reintegration furlough before their minimums, will never be able to litigate that denial. This furlough is meant to take place approximately six months (or less) before someone’s minimum. Suppose the defendant seeks furlough and is denied. Then he has to exhaust his administrative remedies. Then file a Rule 75 motion in the Civil Division. Then if that’s denied, appeal to the Vermont Supreme Court. This all takes more than 6 months, which necessarily will always place the defendant beyond his minimum.
So, this gets dismissed as moot, and the timing issue is left for a different day.
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