by David Reutter

The Vermont Supreme Court held that statutes and policies that do not retroactively after or limit the Vermont Department of Corrections (VDOC) discretion over a prisoner’s treatment programming and early release, their application did not result in a longer sentence than under the prior statutes and policies. As such, the Court found an Ex Post Facto Clause violation did not ensue here.

Dennis K. Chandler pled guilty to one count of aggravated sexual assault, one kidnapping count, and one count of burglary. That 1997 plea resulted in a twenty-five to sixty year prison sentence. At sentencing, VDOC said its goal would be to get Chandler into sex offender treatment program and for release at the minimum incarceration date in 2013.

Subsequent to the conviction, the Vermont legislature altered the parole and basic furlough statutes. Those changes compelled VDOC to create a three-tiered classification system. The result for Chandler was that he was placed in a classification level that focused on “long term confinement” and made him ineligible for treatment programming until conclusion of his minimum sentence. That classification was later changed, and he was placed in a middle tier allowing programming.

Chandler challenged the new policies under the Ex Post Facto Clause, arguing their retrospective application eliminated any “opportunity for him to obtain parole, or any other type of early release” and create a significant risk of increasing his punishment. 

The Supreme Court disagreed, noting nothing suggests VDOC’s fundamental discretion over the timing of plaintiff’s programming has been changed by statute or directive since the date of plaintiff’s incarceration. The Court further rejected VDOC’s arguments that its directives and policies “may not be examined for ex post facto violations because they are not legislative acts”. The Superior Court’s order granting VDOC summary judgment was affirmed. See: Chandler v. Pallito, Sup. Ct. Vt., 2016-104.

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