In a decision reached on October 8, 2021, the Vermont Supreme Court held that a determination by state prison officials to remove a prisoner from programming was reviewable when the catalyst was punitive. The claim at issue was based upon the failure to provide the prisoner a hearing before imposing the sanction.

During a class session in February 2019 for the Vermont Treatment Program for Sexual Abusers at the Northwest State Correctional Facility (NSCF), an instructor asked participants to commit and follow through on something before the next session. Prisoner Zachary Rose whispered to a classmate “escape.”

A staff member heard the comment and, apparently missing its humor, reported it. Rose was placed in administrative segregation pending an investigation. He explained the comment was just a joke. Nevertheless, he was served notice of an administrative segregation hearing and released to wait in the general population a few days later.

Rose then received a Notice of Corrective Action and Removal. It cited two incidents of being late to group, not completing practice work, misusing group bathroom breaks, expressing complaints in a nonconstructive manner, as well as the escape comment. He was deemed a security risk by NSCF officials, who terminated him from the program. But he never received a disciplinary report for the escape comment and in fact was assigned a “minimum” security-risk level when he was then transferred to Northern State Correctional Facility.

Rose was told in the denial of an informal complaint he made that he could reapply for the program a year after he was deemed a security risk. He then filed formal grievances, which were also denied, after which he filed a writ of mandamus in state superior court, alleging that the decision by the state Department of Corrections (DOC) to terminate him from treatment programming was in response to his escape comment, for which he was owed a hearing.

Specifically, Rose argued that the termination constituted punishment under 28 V.S.A. § 851 and therefore required a hearing and due process under § 852. The superior court concluded the termination was not punishment, so it was not reviewable, and it granted DOC summary judgment. With the assistance of state Defender General Matthew F. Valerio and Annie Manhardt of the Prisoners’ Rights Office in Montpelier, Rose appealed.

Before the Supreme Court, DOC maintained its contention that programming decisions are not reviewable under V.R.C.P. 75. But the Court disagreed, finding that Rose did not challenge his removal from the program but rather challenged DOC’s decision to deny a hearing before doing so. That made mandamus review available if DOC’s action constituted punishment because it had a clear legal duty to follow the statutory process under § 852.

The Court said that Rose’s claim must be analyzed under a three-part test to determine whether an administrative action is punitive laid out by the U.S. Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). In applying that test, the Court first looked to whether DOC officials had punitive intent.

The record showed that Rose was terminated from the program because, following his escape comment, he was classified as a security risk. While DOC cited other behaviors that contributed to this new classification, it was that comment that was the catalyst, the Court said, and the superior court erred in not applying the test this way.

But there are two more prongs to the Bell test, and the Court said the record here was unclear as to whether DOC’s conclusion served a “legitimate governmental purpose,” meaning it was also unclear whether its decision was “excessive in relation to its purpose.”

Thus the superior court’s order was reversed and the case remanded for a fuller development of the facts. See: Rose v. Touchette, Comm., Dep’t of Corr.,, 2021 VT 77 (Vermont 2021). 

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