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Can a “Catch 22” Keep a Person in Jail Forever?
Roy Girouard was convicted of first degree murder in 1975 and was sentenced to life in prison with the possibility of parole. His sentence did not specify any minimum term. He has served 30 years in prison and has appeared before the parole board numerous times. His requests for parole have been denied. In 2007 he completed the Corrections Department’s (DOC) “Cognitive Self Change Program” designed to rehabilitate offenders. He then applied for a furlough – a status that allows release under stricter supervision than parole in order to reintegrate into the community. Before 2001, a person could be furloughed without completing his minimum term. In 2001 the law changed to require a person to complete their minimum term to be eligible for a furlough. Since he had no minimum term he couldn’t be furloughed. Worse, DOC would not support a parole unless a person had successfully been furloughed for a certain number of days.
Roy sued DOC claiming the change in the furlough and parole requirements were an ex post facto law prohibited by the Constitution. That provision prohibits enforcing laws that alter the definition of crimes or increase punishments after the act is done; or “create a sufficient risk of increasing the measure of punishment” for a crime.
The Supreme Court ruled the 2001 change in the law that altered or eliminated an inmate’s eligibility for furlough was not an ex post facto law. Instead that change was merely a change in prison administration, and was not an element of punishment so long as the overall length of the inmate’s sentence was not increased.
However, the Court took a different view of the “Catch 22” in this case. Roy’s sentence included the possibility of parole, but the 2001 law change could have the effect or terminating his parole eligibility. Legislative changes that eliminate the possibility of parole that once existed, run afoul of the ex post facto clause. But the Court found it couldn’t decide that case until the trial court held a hearing to determine if there was any flexibility in the DOC rules that would permit the department to recommend parole, even if there were no furlough. It remanded to the trial court to have a hearing to determine if the lack of furlough possibility terminated eligibility for parole, and if so to determine that Roy was the victim of an ex post facto law, and if not to allow consideration for parole: a unanimous decision finding a “Catch 22” unconstitutional for a prisoner’s benefit. Roy Girouard v. Hofmann, Commissioner of Corrections 2009 VT 66.
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On February 12, 2010 Melanie said:
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