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| A mixed "football" metaphor |
By Elizabeth Kruska
The phrase “moving the goalposts” is a metaphor, and it feels apt here. It refers to situations where a process has started, but then the goal gets shifted, and the participant feels a sense of unfairness as a result of the change in goal. Suppose you went to work on Monday and there was a goal to manufacture 100 widgets by Friday. So, off you go, manufacturing widgets. You hit 100 and feel pretty good, and then your boss gets mad that you didn’t manufacture 200 widgets. That could be moving the goalpost.
Or suppose you manufacture widgets, and everything seems fine for a long time and then one day your boss says you don’t work hard enough because you don’t manufacture 100 widgets per week, when nobody ever told you there was a 100-widget-per-week target.
What even is a widget?
Anyway, the second scenario is a little bit like what happened in State v. Burnett. Mr. Burnett was charged with two sex offenses. He pled guilty to both of them. In Case 1 he received a sentence of 4-6 years, all suspended but 38 months to serve. In Case 2 he received a deferred sentence. This means he was on probation in two separate cases. When someone is on probation, they receive probation conditions that they are required to follow as consideration for the sentence. And if we’ve learned anything from the Vermont Supreme Court in the last 10 years or so, it’s that probation conditions have to be tailored to the situation, they have to be clear and unambiguous, and they have to be actually given to the probationer.
During the initial sentencing hearing, the judge ordered the sentence and told Mr. Burnett he would be on probation subject to some so-called sex offender probation conditions and some “standard” conditions. The court then generated a probation order for each case (necessary because there are two different file folders and each one needs an order in it). Each one has some standard conditions, and neither is signed by Mr. Burnett. In Case 1 there is an attached list of sex offender special conditions, which appears to be signed by Mr. Burnett. Case 2—the case with the deferred sentence—the order refers to “sex offender special conditions” but there aren’t any conditions in the file.
The condition at issue here reads “you shall participate fully in the Vermont Treatment Program for Sexual Abusers (VTPSA) during the course of your unsuspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation.”
Here, Mr. Burnett was on notice that he had to do the VTPSA class while in jail.
The State filed a probation violation when Mr. Burnett got kicked out of the VTPSA class. It wasn’t that he didn’t participate, or that he didn’t show up (as far as we know)—it was that he picked a lock to his own cell so he could get inside. The State’s rationale was that program participants are required to do the program, but also that they’re supposed to follow other rules of conduct while incarcerated. There’s a list of general behavioral expectations aside from actual program-specific expectation—follow rules about watching television, be respectful, practice good hygiene, and other things like this. Basically, don’t be a jerk.
One day, Mr. Burnett wanted to get into his own cell, which was locked from the outside. A guard was nearby and asked him to wait. Rather than waiting, he picked the lock so he could go in. There is no dispute this happened—it’s on film. The question is, whether this rose to the level of a probation violation.
The trial court very hesitatingly said it did.
SCOV seems to reason this is moving the goalposts (or maybe putting up goalposts later) and reverses.
Here’s the problem. Mr. Burnett really wouldn’t have had notice that this conduct would get him kicked out of VTPSA, and therefore would potentially violate his probation. The law is really clear (thanks, years of probation condition litigation!) that conditions have to be clear and that a probationer needs to have notice of what behavior constitutes a violation.
When the parties were in court for the violation hearing the judge questioned whether picking a lock amounted to a failure to “fully participate” in the treatment program. Some DOC personnel testified and mentioned that VTPSA has a handbook for the program participants. The handbook was not offered as evidence, but the witness listed several behavioral expectations. The State also did not offer the actual written probation conditions or testimony from any witness could attest reviewing the conditions with Mr. Burnett. Ultimately the judge found that Mr. Burnett didn’t obey the correctional officer when she asked him to wait, and instead he picked the lock to his cell door.
This led to a revocation of probation in Case 1 and an imposition of 4-5 years to serve, and a revocation of the deferred sentence with the imposition of 3 years to life to serve.
On appeal, SCOV concludes the State did not prove that Mr. Burnett’s act of picking the lock to return to his own room after being told to wait amounted to a violation of “participate fully” in sex offender treatment. When considering whether to revoke probation for a programming failure or expulsion, the court has to take an additional step to assess independently whether the probationer’s conduct that led to the expulsion also amounts to a probation violation. The State didn’t offer any evidence about Mr. Burnett’s actual class attendance, engagement, or progress in the program itself. He could have been perfectly fine in the actual class, which certainly would not have caused a violation for non-participation.
A probationer needs to know going in what is expected and what might lead to a violation. It’s like the widget example; a person who is hired to make widgets should get to know the parameters of widget-making expectations before they get fired.
If a condition isn’t expressly stated, it can also be very clearly implied. That can be enough to give notice. In my widget example, suppose everyone at the factory generally makes about 100 widgets per week. If someone makes 105, they get a gold star next to their name on the wall, and people talk a lot about getting a gold star. If someone gets 10 gold stars they get a special nametag that says “gold star widget-maker.” It would be hard for someone who only makes 50 widgets per week to ignore this context evidence and say they didn’t know about widget goals.
This can also happen in probation conditions. Suppose instead the class was instructed there would be a written assignment in every session. Maybe Mr. Burnett forgot his pencil once and as a result couldn’t do the assignment. That may not rise to the level of a violation. But suppose he willfully didn’t bring a pencil every time specifically so that he wouldn’t have to do the assignment. Even though the exact conditions don’t say “bring a pencil” it could be fairly implied that was necessary in order to assure full participation.
SCOV is concerned that any act of insubordination by a probationer could lead to a violation. Suppose he didn’t take a shower for a couple days—would he get kicked out of the class for not practicing good hygiene? Maybe. Should he lose his probation sentence for not taking a shower? Probably not. Certainly, some insubordinate conduct could (and probably should) rise to the level of a probation violation. And while SCOV doesn’t condone Mr. Burnett’s behavior, they can’t get to the point of saying it was sufficient to form the basis of a probation violation. There just wasn’t sufficient notice.
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