A Vermont Judge Had Plans to Slow the Spread of COVID-19 in Prisons. Lawmakers Scrapped Them.

On March 22, a judge in Vermont made an attempt to slow the rapid and potentially lethal spread of COVID-19 in prisons. 

In a memorandum to state lawmakers, Chief Superior Judge Brian Grearson proposed an amendment to current resentencing guidelines as part of an emergency bill to adjust court rules during the pandemic. 

The measure would allow courts to “reduce or otherwise modify” prison sentences beyond the usual 90-day timeline, but only if prosecutors and defense attorneys both agreed. The change would offer judges more flexibility to decarcerate during a pandemic that has so far claimed the lives of over 60,000 Americans and more than 200 people in prisons and jails.

But lawmakers scrapped Grearson’s proposal. Senator Dick Sears, chair of the Senate Judiciary Committee, suggested that lawmakers would oppose the measure, telling Seven Days, a local news site, “I suspect you’re going to run into trouble with the governor. You may even run into trouble on the Senate floor. You’ll definitely run into trouble in the House.” He added that there would be “outcry in the public” if people who committed “certain horrific crimes” tried to get their sentences reduced.

Grearson’s office did not respond to The Appeal’s request for comment.

Sears told The Appeal that most resistance to the proposal came from Vermont’s top prosecutors—its state’s attorneys—who were concerned that Grearson’s amendment would “open a flood gate of people applying [for resentencing], not just during the pandemic, but afterwards.”

He said he would discuss Grearson’s proposal after the pandemic, “when we can have time to fully hear from all sides and fully vet the plan.” 

Sarah Fair George, state’s attorney for Chittenden County, home to Burlington, supports the amendment. But she said many prosecutors oppose it out of concern for victims’ rights. 

“When we have a sentence structure and we present that sentence structure to a victim, there is an expectation to that victim that … that’s the closure of a case,” she said. “There is a concern about telling a victim that a particular sentence is what it is, while also telling them that at any point that might change.” 

She added that state laws do not limit when or how often a defendant can appeal a conviction, and that the law’s current wording leaves interpretative wiggle room for resentencing beyond 90 days. 

James Lyall, executive director of the ACLU of Vermont, also supports the amendment and chastised lawmakers’ reticence to pass the resentencing measure. 

“We find prosecutors and some policymakers are often opposed to revisiting sentences even if they are extreme and excessive,” he said. “Even in the context of this crisis, we still have an opposition to revisiting sentencing. I think that’s telling.”

At the time that lawmakers scrapped Grearson’s proposal, the state’s Department of Corrections had yet to see the pandemic spread within its facilities. It had reported that just one DOC employee, on staff at Northern State Correctional Facility in Newport, had tested positive and self-isolated. 

On April 1, the first staff member at Northwest State Correctional Facility in St. Albans tested positive for COVID-19. Days later, a person incarcerated there tested positive for the disease, after which the prison began testing all incarcerated people.

According to James Baker, the DOC’s interim commissioner, 38 people incarcerated at Northwest State had tested positive for the novel coronavirus, as well as 17 staff members, as of April 20. As part of a “surge” plan, 26 people incarcerated at the prison were transferred to medical isolation at Northeast Correctional Complex in St. Johnsbury. Ten incarcerated people were isolated in similar conditions at Northwest State, according to Baker, while two others have been released since their diagnoses. 

According to DOC figures, 17 incarcerated people have recovered from COVID-19 as of April 30, and 26 total remain in medical isolation. The DOC reported on May 1 that seven more incarcerated people have tested positive for COVID-19 and have been transferred to the surge facility at Northeast. 

“The numbers surprised us and how quickly it happened surprised us, but we weren’t surprised in the planning process to deal with it,” Baker said. 

He said that, as the pandemic started to spread beyond China in mid-February, the DOC began screening incarcerated people for visible COVID-19 symptoms during the intake process. Since the outbreak in its own facilities, the DOC has rented out the Comfort Inn in St. Johnsbury for people working at the prison. People incarcerated in Vermont’s prisons have also manufactured protective gowns and masks to shore up the DOC’s reserves of personal protective equipment.

According to Baker, the DOC has limited means to release incarcerated people who are particularly vulnerable to the virus. He said the state’s medical furlough statutes are “pretty tight.” They typically apply exclusively to incarcerated people who require temporary release for a specific medical treatment, according to George, the Chittenden County state’s attorney. Baker also noted that the DOC does not have the authority to release pretrial detainees. 

But George said she has still had to pressure the DOC to release people within six months of their minimum sentence, at which point they are eligible for furlough or parole. “It didn’t seem worth keeping these individuals [in prison] for another six months, given the circumstances,” she said. 

While Baker believes the success of the state’s depopulation efforts still hinges on the behavior of those who are released, he said the pandemic has changed his approach at the DOC. 

“I do think that it has caused us inside corrections to rethink the way we review cases,” he said. 

Since the outbreak, the DOC has reviewed more cases for release per week to accelerate depopulation measures, according to Baker, which helped decrease Vermont’s incarcerated population from 1,671 in late February to 1,372 by late April.

“I can say with certainty that the Vermont Department of Corrections, more than anyone in the system, has done more to reduce that prison population,” he said. 

But Lyall believes there is more to be done “and that needs to be done urgently.” He called on Governor Phil Scott to use his executive authority to release people, and urged the DOC to exhibit greater leniency when reviewing cases for release. He urged the DOC to expedite the release of those incarcerated for technical violations or nonviolent crimes, and of people nearing their minimum sentence. 

Although lawmakers scrapped Grearson’s proposed resentencing measures, advocates and some state officials—including Judge Grearson—continue to chart new paths to decarceration. Most recently, in his capacity as the head of Vermont’s Superior Court system, Grearson has consolidated and assigned approximately 50 motions for emergency release to Judge John Treadwell. They concern a mix of people in pretrial, pre-sentencing, and post-sentencing stages of the criminal-legal process. 

Paul Volk, a defense attorney, filed an amicus memo for the consolidated cases on behalf of the National Association of Criminal Defense Lawyers and the ACLU of Vermont. He argued that the heightened risk of COVID-19 infection while incarcerated represents a form of cruel and unusual punishment, violating the Eighth Amendment. For pretrial detainees, Volk said, incarceration during the pandemic also violates the Fifth Amendment right to due process. 

Treadwell started hearing the cases on April 21 but has yet to release a judgment on whether the state is violating prisoners’ constitutional rights. That decision would potentially impact hundreds of incarcerated people in Vermont.

“It’s time for the legal system to actually act outside of the box,” said Volk.