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| I doubt DOC's choice of bus was a circa-1970s VW peace bus, but a girl can dream, can't she? |
By Jacob Oblak
The Department of Corrections (DOC) screwed up. No other way to start this story.
Mr. Galloway was serving a 10-year sentence from 2009 for sex crimes totaling four counts, and he maxed out on two counts (done with jail time), leaving only his remaining probation for the last two counts. DOC apparently forgot about that part. They thought Galloway was completely done. They didn’t just let him go, they personally put him on a bus to Seattle.
He got partway to Seattle, and DOC realized their mistake. I can only imagine the conversations happening back at the DOC. Reminds me of a certain gem from the 70s. Endless options here – I’m restraining myself.
So DOC decided to violate his probation (VOP) so that an arrest warrant would issue and he’d get re-arrested and brought back. There, he’s back, all better now. For background, when DOC says someone violated their probation, they get a hearing in front of a judge to determine who’s right. If someone is convicted of violating their probation, they will likely have to serve the remaining probation sentence in jail instead of in the community.
Galloway’s probation conditions, as ordered by the original court that sentenced him in 2009, specifically require this: “You will successfully enroll, participate in, and complete a program for sex offenders approved by DOC and assume the costs of your treatment.” Each word matters in this case.
DOC runs an intensive sex offender treatment program called VTPSA. Basically, the DOC argued that since Galloway had refused VTPSA during his 10-year incarceration, and because he was so willing and eager to get on a bus to Seattle, that he showed he didn’t intend to complete sex offender programming at all. Also, he’d already agreed to a violation way back in 2010 for voluntarily withdrawing from VTPSA, so obviously he knew he needed to do VTPSA.
Galloway argued in return that he wasn’t on notice that it had to be VTPSA specifically or happen during his 10-year incarceration. The probation condition didn’t specifically say that. DOC was trying to change the probation condition into something they liked better than the original, and they can’t do that.
The VOP judge agreed with DOC and convicted Galloway of the violation, which sent him back to jail. Galloway appeals to SCOV.
SCOV explains the backstory, and then holds that DOC impermissibly modified the probation condition, based on the plain language of the condition. When the original court sentenced Galloway, it said “a program for sex offenders,” not the program for sex offenders. Clearly, then, the court didn’t mean it had to be VTPSA.
Furthermore, why would DOC have to approve the program if there was only one option—its own? The word approve also doesn’t mean mandate or require, so clearly Galloway had the ability to choose what program he wanted. The original probation condition also required Galloway to pay for the program, which he couldn’t have done while incarcerated. Clearly, the 2009 sentencing court intended Galloway to be able to do the program after he got out of jail.
So by violating Galloway for not having done VTPSA while incarcerated, DOC was unlawfully expanding its power by modifying the probation condition into one they liked better, which deprived Galloway of a fair shot a knowing he was violating the condition. The State’s Attorney could have asked for a more specific or more rigorous condition in 2009, but it didn’t. DOC can even ask the court to change a condition in some circumstances. But DOC can’t just do it on its own.
SCOV reverses the VOP judge’s decision and un-violates Galloway’s probation.
Justice Carroll dissents, arguing that the probation condition properly delegated the discretion to DOC to decide what program would best suit Galloway’s rehabilitative needs. DOC here had screened Galloway and decided he was high risk to reoffend, so DOC determined that the intensive VTPSA program—only offered while someone is incarcerated—was the best fit for his needs. A community program after release is less intensive, and usually used for those who are low risk to reoffend.
Justice Carroll would have found that Galloway was on fair notice that he had to do VTPSA, since he had agreed to a violation of probation in 2010 based on the fact that he voluntarily withdrew from VTPSA. Then, since 2010, DOC repeatedly offered VTPSA to Galloway, but he refused to do it. So Justice Carroll would have affirmed the trial court.
In the end, this 4-1 decision for Galloway centers on the definition of certain words like “a” vs. “the.” But honestly, the colossal mess up that got this case to SCOV in the first place is what sticks in my mind. I mean, DOC literally put him on a bus to Seattle. I can’t even.
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