Vermont Supreme Court: Prisoners Transferred Out-of-State Have Same Rights as In-State Prisoners
The Vermont Supreme Court recently ruled in a case that, although legally binding only for Vermont prisoners, may be of broader interest to the many states that transfer inmates to out-of-state facilities because their own prisons are overcrowded. Out-of-state prisons are typically run by private companies that may impose different rules, and may provide prisoners with fewer rights and privileges, than state-run facilities. So, the question that logically arises is whether it’s permissible to treat prisoners differently based solely upon the happenstance of where they’re housed, or whether out-of-state and in-state prisoners must be treated equally. This week’s Vermont Supreme Court ruling suggests the latter, in a ruling with two parts. First, the court holds that out-of-state prisoners are entitled to all the same statutory rights and privileges that in-state prisoners have under Vermont law. Second and potentially farther reaching, even for rights and privileges provided for by prison policy rather than statute, the court suggests that out-of-state prisoners may have a viable equal protection challenge under the Fourteenth Amendment.
Here are the facts: Vermont’s prisons have two rules in place to facilitate inmate communication with family and friends outside. First, when making phone calls, inmates have a statutory right to choose between making collect calls or paying with debit calling cards. Second, although this rule is not statutory, prison policy is to provide all inmates with up to seven free postage stamps per week. It so happens that, through a contract with the private Corrections Corporation of America, Vermont houses about 600 prisoners in a private Kentucky facility where inmates can only make collect calls (which are more expensive and which don’t always work with cell phones) and receive no free stamps. But, the Vermont Supreme Court recently held, all Vermont prisoners, regardless of where they’re incarcerated, have to be afforded their state statutory right to calling cards. As for the postage stamps, the court remanded back to the trial court to flesh out the record on whether there’s a constitutional equal protection violation. That component of the ruling may be of broader interest since it’s arguably a closer question, and rests not on Vermont law but on the Equal Protection Clause of the Fourteenth Amendment:
The Equal Protection Clause demands that states treat similarly situated people alike, unless they have a rational basis for treating them differently. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2153 (2008); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiffs allege that DOC refuses to provide free stamps to Vermont inmates housed at the Lee Adjustment Center and therefore treats them differently than similarly situated persons—that is, Vermont inmates housed in Vermont. The State concedes that it does not provide free stamps to plaintiffs, but contends that plaintiffs are not situated similarly to inmates housed in Vermont. Rather, the State argues, plaintiffs should be compared to the other inmates housed at the Lee Adjustment Center. Some cases from other jurisdictions support the view that plaintiffs are similarly situated with in-state Vermont inmates; others support the opposing view advanced by DOC. Compare, e.g., Bishop v. Moran, 676 F. Supp. 416, 421 (D.R.I. 1987) (“[T]he mere fact that an inmate is being housed in a different facility does not mean that he is no longer a [sending] state prisoner subject to the jurisdiction of the [sending state’s] Department of Corrections along with in-state prisoners.”), with Tucker v. Angelone, 954 F. Supp. 134, 136 (E.D. Va. 1997) (“For equal protection purposes, inmates transferred pursuant to the Interstate Corrections Compact are similarly situated to those inmates in the receiving institutions.” (quotation omitted)).
Equal protection “does not just mean treating identically situated persons identically.” Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995). The issue is whether the groups involved are similar in relevant aspects. Thomas v. City of W. Haven, 734 A.2d 535, 545 (Conn. 1999). There must be “some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” People v. Nguyen, 63 Cal. Rptr. 2d 173, 178 (Cal. Ct. App. 1997).
Here, DOC wants us to rule that plaintiffs are not similarly situated with in-state inmates solely on the basis that they are housed out of state. We conclude that this fact, alone, does not show that plaintiffs are not situated similarly with in-state inmates for purposes of an entitlement to stamps. Indeed, on the surface, the fact that the plaintiffs are housed out of state would appear to increase the need for the ability to communicate with family and others that the stamps provide. We reiterate that we have no facts on which to base a ruling, other than the general ones provided above, which can be used only to demonstrate the context for the issues. We do not have the contract between DOC and CCA, and we do not know the barriers to supplying the stamps. We do not know what other inmates are at the Lee Adjustment Center and the rights and privileges of these inmates. For all that appears in this record, other inmates at the Center could be provided with free stamps, while the Vermont inmates are denied those stamps.
The inadequacy of the record becomes even more apparent when we reach DOC’s argument that there is a rational basis for any discrimination between in-state and out-of-state inmates. For this argument, DOC repeats its claim with respect to the telephone charging issue: the policies of the receiving state should control, it is onerous to have different policies on communication for different inmates, and having different policies for different inmates on the availability of stamps would undermine inmate morale. Each of these claims requires factual support, and DOC has provided none because it filed a motion to dismiss that cannot go outside the facts alleged by plaintiffs. The trial court acted prematurely in dismissing plaintiffs’ equal protection claim with respect to stamps.