Guest editorial: Lawmakers must act after court’s ruling on prison suit

Michael Carpenter is a Vermont inmate judged as a habitual offender and he was one of the 500 or so prisoners the state sends to out-of-state prisons. Today, he is back in Vermont.
He is back because he won his lawsuit against the state. He contended that his constitutional rights were violated and Washington Superior Court Judge Helen Toor agreed. She ruled he was denied equal protection under the Constitution.
Mr. Carpenter claimed the discrimination because only men are sent to out-of-state prisons. Female prisoners remain in Vermont.
Mr. Carpenter has twin boys and he wants to see them. That was not possible when he was imprisoned in Kentucky. Filing suit, as it turns out, was his way back.
But the effect of Ms. Toor’s ruling extends beyond Mr. Carpenter and his individual desire to see his children. As the judge wrote: “The court cannot sanction DOC’s policy of sending male inmates far from home, regardless of whether they have close bonds with their young children, while keeping all women nearby.” She added that the “policy of sending only men out of state is, for all practical purposes, equivalent to a regulation barring all contact with the inmates’ minor children.”
The state failed to prove its case that the Constitution does not provide inmates with rights to visitation. And the state was unable to convince the judge that Vermont hasn’t the space to house these inmates and that bringing them back would create the traditional problems that come with overcrowding.
The state has not appealed the ruling. Judge Toor’s ruling affects only Mr. Carpenter. For now. The state has two basic options (aside from pursuing future court action): It could keep those male prisoners who have children in Vermont, or it could begin sending women out of state as well.
The chances are zilch that we will begin shipping our female prisoners out of state.
That brings the issue back to the obvious: money. Vermont has sent its prisoners out of state for 16 years and we have done so because it costs less to house them in Kentucky or Arizona than it does here. We’ve also been unwilling to pay what it would cost to have them here.
It’s an expensive process. Vermont’s prisons are home to roughly 200 inmates who would ordinarily be released, but there is no housing. Building new prisons is not only expensive, but politically difficult. Most communities don’t want them and those who have them aren’t thrilled with the idea of having them expanded.
We’d prefer not to deal with the issue at all, but Judge Toor may have taken that option away.
How we respond will be a question for the Legislature, which can pursue several options, one being the need to provide new beds for returning inmates, or to change sentencing requirements, whereby the courts send fewer offenders to jail. Vermonters for Criminal Justice Reform, for example, makes the case that penalties for nonviolent drug crimes should not include incarceration.
We have already moved in that direction with the passage of legislation that decriminalizes the possession of small amounts of marijuana. The move to legalize pot in Vermont may raise the issue of costs versus benefits. (How much money would the corrections system be saved if the drug were legalized?) But the discussion is not that simple. Government’s first responsibility is public safety. Having jail be a place for violent offenders only doesn’t suffice. Burglary in some cases is not a violent crime, but it’s hardly something to encourage by removing the threat of jail time.
It’s not apparent that the Legislature will have this issue on its plate this session. And it may not occur at all. The state did not appeal this decision, but it intends to more forcefully challenge any other lawsuit that might be filed. If the state wins, the status quo remains. It’s also possible the court would accept a technological substitute for personal visits — Skype, for example.
But Judge Toor’s decision has forced the issue. It’s also expected that other Vermont inmates will file similar suits. (Why wouldn’t they?) Obviously, it would be prudent for the Legislature to start the conversation.
Emerson Lynn
St. Albans Messenger

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