The Vermont Supreme Court denied prisoners’ Ex Post Facto violation claims, holding that there was no sufficient evidence showing that the enactment of new policies and statutes worked to prohibit their parole release.
According to the U.S. Supreme Court, “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of [Ex Post Facto],” if the changes created “a sufficient risk of increasing the measure of punishment …” However, a speculative or attenuated possibility of increased punishment is not “sufficient” proof.
Kirk Wool and Bernard Carter claimed that the 1999 enactment of 13 V.S.A. §5301(7) and the 2009 enactment of Vermont’s Department of Corrections ("DOC") three-tier directives eliminated DOC’s discretion to place them in treatment programs and increased the sentences before they could be paroled.
The Vermont Supreme Court denied the claims on several basis. Both prisoners’ claim arose from aggravated sexual assaults committed in 1992. The programs and early release furloughs being denied were created in 2001 and 2005. The review had to be conducted regarding conditions that existed in 1992. The court held that the department’s authority over programs and classification were the same as they were in 1992, so there were no increased sentences.
Also, DOC’s reclassifications under the three-tier system did not govern, limit, or alter the Parole Board’s discretion to grant early release, so any claim of risk of increasing the sentence was mere speculation and insufficient to show Ex Post Facto Clause violation.
The court concluded that the statute does not increase or even apply to the length of … incarceration,” so there is no violation. Furthermore, the statutes and policies only allowed a more precise exercise of discretion, which by its nature embodied a capacity and obligation to change. Such discretion did not eliminate or limit the possibility for early release, so no Ex Post Facto violation was proven. See: Wool v. Pallito/Carter v. Menard, _A.3d_ (2018)

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