Daye v. State
Annotate this Case
Daye v. State (99-133); 171 Vt. 475; 769 A.2d 630
[Filed 29-Dec-2000]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 99-133
Kathleen Daye, Kade Barre, Supreme Court
Fred Lee, Niholas Bania,
Darla Lawton and Vermont Cure On Appeal from
Washington Superior Court
v.
State of Vermont March Term, 2000
John Gorczyk, Commissioner
Department of Corrections
David A. Jenkins, J.
James A. Dumont of Keiner & Dumont PC, Middlebury, for Plaintiffs-Appellants.
Marie J. Salem, Assistant Attorney General, Waterbury, for Defendants-Appellees.
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, for
Amicus Curiae Office of Defender General.
PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., and Suntag, D.J., Specially
Assigned
JOHNSON, J. Plaintiffs Vermont CURE and four of its members appeal
from a superior court judgment dismissing their complaint against
defendants the State of Vermont and John Gorczyk, Commissioner of the
Vermont Department of Corrections. Plaintiffs contend: (1) the transfer
of Vermont inmates to out-of-state correctional facilities violates the
Interstate Corrections Compact, 28 V.S.A. §§ 1601-1621, and exceeds the
Commissioner's statutory authority; (2) the transfer of Vermont inmates to
out-of-state facilities violates Chapter II, § 64 of the Vermont
Constitution; and (3) the court erred in concluding that plaintiffs lacked
standing to assert the statutory and constitutional claims. We affirm.
Plaintiffs are members of Vermont CURE, an organization whose
self-described mission is to meet with and advocate on behalf of Vermont
prison inmates. They claim to have close personal, religious, or
mentoring relationships with one or more inmates, and to have organized and
attended numerous meetings with inmates within Vermont correctional
facilities. In July 1998, plaintiffs instituted this action against
defendants, alleging that the Commissioner had entered into contracts with
Monmouth County, New Jersey and the State of Virginia for the transfer of
Vermont inmates in contravention of the Interstate Corrections Compact and
provisions of the Vermont and United States Constitutions.
Specifically, plaintiffs alleged as follows: that the Commissioner was
not authorized to enter into the contract with Monmouth County because the
Interstate Corrections Compact (Compact) authorizes agreements for the
transfer of prisoners only with member "states;" that the contract with
Virginia violated the Compact by delegating to Virginia officials the
authority to determine inmate assignments; that the out-of-state
transfers, and the visitation policies of Virginia and Monmouth County,
prevented plaintiffs from conducting group meetings with Vermont inmates,
in violation of the Compact, as well as plaintiffs' constitutional rights
of free speech, association, and assembly; and, finally, that the transfer
of Vermont inmates to out-of-state correctional facilities violated
Chapter II, § 64 of the Vermont Constitution, which calls for "visible
punishments" of persons convicted of crimes.
The State moved to dismiss the complaint, arguing that the
out-of-state transfer policy and implementing contracts fully complied
with statutory and constitutional law, and further that
plaintiffs lacked standing to assert the claims. The trial court granted
the motion, ruling that plaintiffs lacked standing to assert the
violations of the Compact and the Vermont Constitution, and that neither
the transfers per se, nor the visitation policies of the out-of-state
facilities, violated plaintiffs' constitutional rights of speech,
assembly, or association. This appeal followed.
Plaintiffs contend on appeal: (1) that the court erred in concluding
they lacked standing, and (2) that the out-of-state transfers violated
both the Compact and the Vermont Constitution. (FN1) On the standing
issue, plaintiffs assert that they fall within the "zone of interests"
protected by the Compact. Allen v. Wright, 468 U.S. 737, 751 (1984).
They cite, in particular, a section of the Compact providing that "[t]he
parent, guardian, trustee, or other person or persons entitled under the
laws of the sending state to act for, advise, or otherwise function with
respect to any inmate shall not be deprived of or restricted in his
exercise of any power in respect of any inmate confined pursuant to the
terms of this compact." 28 V.S.A. § 1604(i). As individuals with close
personal, familial, and mentoring relationships with Vermont inmates, and
as an organization that meets with and advocates on behalf of Vermont
inmates within Vermont correctional facilities, plaintiffs argue that they
fall within the protection of this provision, and that their ability to
act on behalf of Vermont inmates has been compromised by the out-of-state
transfers. Plaintiffs also argue that Chapter II, § 64 of the Vermont
Constitution grants them, as members of the public, a direct stake in
witnessing the "visible punishments" of Vermont convicts.
Recently, in Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 341,
693 A.2d 1045, 1048 (1997), we explored in some detail the
"constitutional" and "prudential" components of the standing
doctrine. The issue, we emphasized, cannot be addressed without reference
to "'the specific common-law, statutory or constitutional claims that a
party presents.'" Id. (quoting International Primate Protection League
v. Adminstrators of Tulane Ed. Fund, 500 U.S. 72, 77 (1991)). We examined,
accordingly, the substance of the plaintiff's constitutional and civil
rights claims, concluding that they implicated no legally protected right
under the Constitution. We affirmed, therefore, the trial court's
dismissal both on lack of standing and on the merits. See id. at 344, 693 A.2d at 1050 ("Although we affirm the dismissal based on lack of standing,
we add that we do not believe the claim has merit under the Equal
Protection Clause.").
Here, similarly, we find that the sufficiency of plaintiffs' legal
interest under the Compact and Chapter II, § 64 of the Vermont
Constitution cannot be evaluated without closely examining the substance
of the claims. As explained below, we conclude that even if plaintiffs had
standing to assert the statutory and constitutional claims, they would
fail on the merits. See id. at 340, 693 A.2d at 1047 (holding that "even
if plaintiff had standing to bring this action, it has failed to state a
cause of action under 42 U.S.C. § 1983").
I.
Plaintiffs contend that the contracts with Virginia and Monmouth
County, New Jersey violated the Compact and other state laws in several
respects. First they argue that the Compact, which authorizes contracts
only with "party states," 28 V.S.A. § 1603, circumscribes the
Commissioner's authority to transfer prisoners out of state and, therefore,
that the agreement with the County of Monmouth, a political subdivision
of the State of New Jersey, exceeded the Commissioner's statutory powers.
As an administrative body, the Department "has only such powers as are
expressly conferred upon it by the Legislature, together with such
incidental powers
expressly granted or necessarily implied as are necessary to the full
exercise of those granted." Trybulski v. Bellows Falls Hydro-Elec. Corp.,
112 Vt. 1,7, 20 A.2d 117, 120 (1941); accord Perry v. Medical Practice
Bd., 169 Vt. 399, 403, 737 A.2d 900, 903 (1999). In operating the State's
prison system, the Commissioner's fundamental responsibility is "[t]o
maintain security, safety and order at the correctional facilities." 28
V.S.A. § 102(c)(6); see also State v. Berard, 154 Vt. 306, 311, 576 A.2d 118, 121 (1990) ("The interest of the state in the safe and orderly
operation of Vermont's prisons is great.").
When assigning prisoners to correctional facilities, the Commissioner
is broadly authorized "to designate the place of confinement where the
sentence shall be served." 28 V.S.A. § 701(b). To this end, the
Commissioner may also "order the assignment and transfer of persons
committed to the custody of the commissioner." Id. § 102(b)(5).
Moreover, the Legislature has expressly provided that the Commissioner may
"exercise all powers and perform all duties necessary and proper in
carrying out his responsibilities and in fulfilling the purposes and
objective of this title." Id. § 102(c)(17).
The Commissioner's decision to contract with Monmouth County for the
transfer of Vermont prisoners was made in response to increasing pressure
upon in-state facilities caused by overcrowding. The deleterious effect
of overcrowding in jails is widely recognized, and, indeed, has been a
continual source of prison litigation. See, e.g., Alberti v. Klevenhagen,
46 F.3d 1347, 1353 (5th Cir. 1995) (upholding court-ordered remedial plan
to alleviate overcrowding in jails based upon findings concerning its
detrimental effect on inmate and staff security, food service, and fire
safety); Alexander v. Boyd, 876 F. Supp. 773, 791 (D.S.C. 1995) (finding
that overcrowded conditions in correctional facilities had negative impact
on program effectiveness, security, and other
conditions of confinement).
We conclude, therefore, that the authority to enter into the Monmouth
County contract was well within the powers reasonably and necessarily
implied by the Commissioner's fundamental obligation to maintain prison
safety and order, and the Commissioner's express and unfettered statutory
authority to designate, assign and transfer inmates. See Perry, 166 Vt. at
403-405, 737 A.2d at 903-904 (medical board's discretion to deny request
for withdrawal of application "falls well within the necessary and implied
powers of its express statutory mandate") .
Plaintiffs maintain, nevertheless, that the Compact itself
demonstrates otherwise. They argue that if the authority to transfer
prisoners out of state were implicit in the Commissioner's other statutory
powers, the Compact would simply not have been necessary. The argument
presumes that the Compact was enacted for the purpose of authorizing such
transfers. On the contrary, the Compact expressly acknowledges the
validity of pre-existing interstate corrections agreements, stating that
"[n]othing contained in this compact shall be construed to abrogate or
impair any agreement or other arrangement which a party state may have
with a nonparty state for the confinement, rehabilitation or treatment of
inmates." 28 V.S.A. § 1609; see also Slater v. McKinna, 997 P.2d 1196,
1198-99 (Colo. 2000) (holding that Interstate Corrections Compact did not
affect or preempt laws of party states providing for transfer of prisoners
to private correctional facilities in other states).
The Compact was enacted, not to validate interstate agreements, but to
"provide for the mutual development and execution of . . . programs of
cooperation for the confinement, treatment and rehabilitation of offenders
with the most economical use of human and material resources." 28 V.S.A.
§ 1601. Its purpose was to establish orderly procedures for interstate
transfers, to ensure
that prisoners transferred to other states "shall be treated in a
reasonable and humane manner and shall be treated equally with such
similar inmates of the receiving state," id. § 1604(e), and to secure
adequate procedural protections for such inmates. See id. § 1604(f)
(receiving state shall provide adequate facilities for any hearings to
which inmate may be entitled under laws of sending state); see also Ghana
v. Pearce, 159 F.3d 1206, 1207 (9th Cir. 1998) ("The Compact sets forth
procedures governing the interstate transfer of state prisoners, and it
ensures that such prisoners maintain certain rights provided by the
sending state."). Thus, there is no merit to plaintiffs' claim that the
Monmouth County contract was invalid as an ultra vires exercise of the
Commissioner's authority.
Plaintiffs also contend that the contract with Virginia violated the
Compact by delegating to Virginia authorities the right to designate the
prison assignment of transferred inmates. Under the Compact, when prison
officials of a party state determine that transfer of an inmate to another
party state is necessary or desirable, "said officials may direct that the
confinement be within an institution within the territory of said other
party state, the receiving state to act in that regard solely as agent for
the sending state." 28 V.S.A.§ 1604(a). Inmates so transferred remain
"subject to the jurisdiction of the sending state," which may at any time
remove the prisoner for transfer to an institution within the sending
state or to another institution with which the sending state may have a
contractual right to confine inmates. Id. § 1604(c).
Thus, as the court in Gibson v Morris, 646 P.2d 733, 735 (Utah 1982),
observed, "the officials of a receiving state have no authority to make
any change in the custody of a prisoner received under the Compact without
the direction or approval of the sending state." While Virginia could
not, therefore, reassign or transfer a Vermont inmate without the approval
of Vermont authorities, nothing in the Compact limited Vermont's power to
authorize Virginia to assign
Vermont inmates to such Virginia correctional facilities as it deemed to be
necessary or proper for security, rehabilitation, or other purposes.
Indeed, the Compact expressly contemplates that the party states will
enter into contracts addressing, among other subjects, payment, duration,
participation in programs of inmate employment, and "[s]uch other matters
as may be necessary and appropriate to fix the obligations,
responsibilities and rights of the sending and receiving states." 28
V.S.A. § 1603(a)(5). Accordingly, we perceive no infirmity in the contract
authorizing Virginia to designate the correctional facility for
transferred inmates.
Plaintiffs next contend that the out-of-state facilities' policy of
limiting inmates to one adult visitor at a time violates the Compact's
requirement that "persons entitled under the laws of the sending state to
act for, advise, or otherwise function with respect to any inmate shall not
be deprived of or restricted in his exercise of any power in respect to
any inmate confined pursuant to the terms of this compact." Id. §
1604(i). Plaintiffs contend that the limited visitation policy prevents
them from holding the group meetings that they are entitled to hold, and
often do hold, in Vermont prisons. Plaintiffs also cite the Compact
provision that "confinement in a receiving state shall not deprive any
inmate so confined of any legal rights which said inmate would have had if
confined in an appropriate institution of the sending state." Id. §
1604(e).
Contrary to plaintiffs' contention, other states construing identical
provisions have concluded that transferred inmates are subject to the
disciplinary authority and rules of the receiving state. Indeed, the
Compact mandates that transferred inmates "be treated equally with such
similar inmates of the receiving state as may be confined in the same
institution." Id. § 1604(e) (emphasis added). Thus, courts have uniformly
rejected claims that transferred prisoners are entitled to the same
disciplinary, classification, visitation, and grooming policies as
prisoners in the sending state. See,
e.g., Stewart v. McManus, 924 F.2d 138, 141 (8th Cir. 1991) ("We do not
read the Interstate Corrections Compact or the implementing contract to
require the application of Kansas disciplinary rules and regulations to a
transferred prisoner."); Jaben v. Moore, 788 F. Supp. 500, 503-504 (D.Kan.
1992) (rejecting claim that Interstate Corrections Compact required
application of sending state's custody-classification guidelines);
Cranford v. State, 471 N.W.2d 904, 905 (Iowa Ct. App. 1991) (holding that
Compact did not require application of sending state's disciplinary rules);
Glick v. Holden, 889 P.2d 1389, 1393 (Utah App. Ct. 1995) (denying
prisoner's claim that he was entitled to benefit of policies and
procedures of sending state).
Plaintiffs' contention here is similar to that brought by the
petitioner in Glick, an Arkansas prisoner transferred under that state's
Compact to the Utah State Prison. Glick claimed that Utah authorities had
violated the Compact by assigning him a higher security classification than
he had received in Arkansas, by allowing him only one female visitor other
than those in his immediate family, while Arkansas allowed him several
unrelated female visitors, and by applying Utah rather than Arkansas
disciplinary rules and grooming policies. The Glick court acknowledged that
under the Compact the sending state may conduct hearings to which the
inmate is entitled in the receiving state's facility, and that in such
proceedings the "governing law shall be that of the sending state." 28
V.S.A. §1604(f). This did not mean, however, that all of the sending
state's policies and procedures necessarily applied to transferred
inmates. "A common sense reading of these provisions must allow
authorities having daily, physical custody of a transferred inmate to
determine the discipline, visitation, classification, and grooming aspects
of the inmate's incarceration." Glick, 889 P.2d at 1393.
We conclude, accordingly, that plaintiffs here were not entitled,
under the Compact, to the
same visitation policy in out-of-state correctional facilities that applied
in Vermont facilities. (FN2)
II.
Plaintiffs additionally contend that the routine transfer of Vermont
inmates to out-of-state correctional facilities violates a provision of
the Vermont Constitution calling for "visible punishments." Vt. Const.
ch. II, § 64. The section in question provides, in its entirety, as
follows:
To deter more effectually from the commission of crimes, by
continued visible punishments of long duration, and to make
sanguinary punishments less necessary, means ought to be provided
for punishing by hard labor, those who shall be convicted of
crimes not capital, whereby the criminal shall be employed for
the benefit of the public, or for the reparation of injuries done
to private persons: and all persons at proper times ought to be
permitted to see them at their labor.
Plaintiffs argue that the constitutional language calling for "visible
punishments of . . . those who shall be convicted of crimes," and
requiring that "all persons . . . ought to be permitted to see them at
their labor," prohibits the out-of-state transfers. They rely principally
upon historical materials showing that the framers of the first state
constitutions were vitally concerned with penal reform, rejecting the
harsh "sanguinary" punishments - such as whipping, branding, and mutilation
- which were then common in favor of visible hard labor as a more humane
and effective means of deterrence and rehabilitation. See M. Meskell, An
American Resolution: The History of Prisons in the United States from
1777-1877, 51 Stan. L. Rev. 839, 841-47 (1999) (tracing evolution from
colonial reliance upon harsh corporal punishments to institution of
imprisonment at hard labor during late 1700's). Plaintiffs trace the
influence of Cesare Beccaria and other notable Enlightenment theorists of
penal reform upon William Penn and Benjamin Franklin in Pennsylvania, see
id. at 843-45, which ultimately led to the enactment of Section 39 of the
Pennsylvania Constitution of 1776. (FN3) This section of the first
Pennsylvania Constitution - like so many other provisions of that singular
document - provided the model for Chapter II, § 35 of the Vermont
Constitution of 1777, the precursor to Section 64. (FN4)
Plaintiffs note that several other states during this period adopted
similar constitutional
prohibitions against "sanguinary" punishments. See, e.g., New Hampshire
Constitution of 1784, art. 18 ("a multitude of sanguinary laws is both
impolitic and unjust"); Maryland Constitution of 1776, Declaration of
Rights, art. 16 ("sanguinary Laws ought to be avoided as far as it is
consistent with the safety of the State"). No states other than
Pennsylvania and Vermont, however, adopted the requirement of "visible
punishments," and the clause was deleted entirely from the revised
Pennsylvania Constitution of 1790. Thus, as is often the case, we are left
to interpret a unique eighteenth-century constitutional construct that
has seen little change or interpretation over the last 200 years.
In addressing claims premised upon the Vermont Constitution, this
Court has emphasized that our State constitution provides the "first and
primary safeguard of the rights and liberties of all Vermonters," Baker v.
State, __ Vt. __, __, 744 A.2d 864, 870 (1999), and that "the motivating
ideal of the framers" must continually inform our analysis of contemporary
issues. Id. at __, 744 A.2d at 874. Plaintiffs are well served,
therefore, in seeking guidance from the historical and ideological forces
surrounding the framing of the constitutional provision at issue. See
State v. Jewett, 146 Vt. 221, 225-29, 500 A.2d 233, 234-38 (1985)
(encouraging attorneys asserting state constitutional law claims to
diligently develop and utilize historical materials).
Plaintiffs' claim ultimately fails, in our view, not through any fault
of their research, but rather their logic. The argument that the
fundamental purpose - the "motivating ideal" - of the framers was to
replace brutal punishments with visible labor for the people to observe and
"and be instructed by" is largely persuasive. What plaintiffs have failed
to demonstrate is any violation of that motivating ideal. They have not
shown how the deterrent principle at the heart of the provision is in any
respect undermined or diminished by the transfer of a portion of Vermont's
inmate
population out of state.
Although plaintiffs note that several hundred inmates have been
transferred from Vermont to out-of-state correctional facilities, they
acknowledge that this is a fraction of Vermont's current inmate
population. So long as Vermont citizens have access "at proper times" to
those inmates remaining, the goal of deterrence through "visible
punishments" would appear to be more than adequately served. We discern
no logical basis to conclude that the instructive example of three-
quarters or even half of those convicted of crimes in Vermont and sentenced
to "hard labor" in Vermont prisons is any less effective a deterrent than
a prison population composed of every Vermont inmate. In sum, we discern
no violation of the constitutional ideal.
In an amicus curiae brief filed in support of plaintiffs, the Defender
General offers an alternative analysis of Section 64. It is argued that,
in reality, the section was designed as an "anti-transportation" clause to
forbid the common English practice of "banishment" or exile of prisoners.
The claim is questionable. The framers actually included a
"transportation" clause in the first Vermont Constitution that had no
antecedent in the Pennsylvania Constitution of 1776. It provided "[t]hat
no person shall be liable to be transported out of this State, for trial,
for any offence committed within this State." Vt. Const. of 1777, ch. I, §
19, reprinted in Records of the Council of Censors (P. Gillies & G.
Sanford, eds. 1991) 8. (FN5) Other state constitutions reflected a similar
concern that prisoners not be removed from the jurisdiction for trial.
See, e.g., Md. Const.
of 1776, Declaration of Rights, art. 20 ("That the trial of facts, where
they arise, is one of the greatest securities of the lives, liberties and
estate of the People"). Having determined independently to forbid the
transportation of persons out of state for trial, it is reasonable to
assume that - had they so desired - the framers could have also expressly
prohibited the transportation of prisoners out of state for offenses
committed in Vermont. See, e.g., Illinois Const. of 1818, art. VIII, § 7
(providing "[t]hat no person shall be liable to be transported out of this
state for any offence committed within the same").
Moreover, even assuming that a "transportation" prohibition was within
the framers' intentions, the general view is that out-of-state transfer of
prisoners for the purpose of alleviating overcrowding or other
correctional goals is not punishment equivalent to banishment or
transportation. In Olim v. Wakinekona, 461 U.S. 238, 248 n.9 (1983) the
United States Supreme Court explicitly rejected a prisoner's claim that
his out-of-state transfer was analogous to "banishment," observing that
"respondent in no sense has been banished; his conviction, not the
transfer, deprived him of his right freely to inhabit the State. The fact
that his confinement takes place outside Hawaii is merely a fortuitous
consequence of the fact that he must be confined, not an additional
element of his punishment." In so holding, the Supreme Court cited this
Court's earlier decision in Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105
(1977), which similarly rejected a Vermont inmate's claim that his planned
transfer to an out-of-state federal facility constituted the "punishment
of exile, banishment or transportation." Id. at 449, 378 A.2d at 106. We
concluded that the analogy "outruns the realities. . . . The fact that
the confinement may take place outside of the State of Vermont is merely a
fortuitous consequence of a properly invoked administrative decision and
not a designed denial of the State of Vermont to him imposed as a penalty."
Id. at 449-
50, 378 A.2d at 106-107; see also Battick v. Stoneman, 421 F. Supp. 213, 229
(D.Vt. 1976) (rejecting claim that transfer of Vermont inmate to federal
system was "punitive"); Sayles v. Thompson, 457 N.E.2d 440, 443-44 (Ill.
1983) (holding that transfer of Illinois inmates to out-of-state prisons
under Interstate Corrections Compact did not violate anti-transportation
clause of state constitution because purpose of transfers was not
punitive); but cf. Ray v. McCoy, 321 S.E.2d 90, 92-93 (W.Va. 1984)
(concluding that transfer of state inmates to federal correctional
facilities in California violated state constitution's transportation
clause).
We conclude, accordingly, that the transfer of Vermont inmates to
out-of-state correctional facilities does not violate Chapter II, § 64 of
the Vermont Constitution.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Plaintiffs have not renewed their claim on appeal that the transfers
and restrictive visitation policy violated their constitutional right to
free speech, assembly, and association.
FN2. Plaintiffs also claimed that the alleged violations of the Compact
provided the basis for a 42 U.S.C. § 1983 civil rights action, asserting
that Congressional authorization of such interstate compacts in the Crime
Control Consent Act of 1934, 42 U.S.C. § 112, had "federalized" the law.
Section 1983, of course, is not a source of independent substantive rights,
but rather a means of redressing violations of federal statutory and
constitutional law. See Albright v. Oliver, 510 U.S. 266, 271 (1994);
Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Most courts have held, however,
that the Interstate Corrections Compact was not transformed into federal
law through Congressional consent, and therefore cannot form the basis of
a 42 U.S.C. § 1983 claim. See Ghana, 159 F.3d at 1208; Jennings v.
Lombardi, 70 F.3d 994, 995 (8th Cir. 1995); Stewart, 924 F.2d at 142;
Griffin v. Riveland, 148 F.R.D. 266, 269 (E.D.Wash. 1993); but cf. Cameron
v. Mills, 645 F. Supp. 1119, 1128 (S.D.Iowa 1986); Opinion of the Justices,
184 N.E.2d 353, 355 (Mass. 1962). Having concluded that the contracts at
issue did not violate the Compact, we need not resolve this issue.
FN3. Section 39 of the Pennsylvania Constitution of 1776 provided as
follows: "To deter more effecually from the commission of crimes, by
continued visible punishments of long duration, and to make sanguinary
punishments less necessary; houses ought to be provided for punishing by
hard labour, those who shall be convicted of crimes not capital; wherein
the criminals shall be imployed (sic) for the benefit of the public, or
for reparation of injuries done to private persons: And all persons at
proper times shall be admitted to see the prisoners at their labour."
Reprinted in Constitutions of Pennsylvania (J. Fertig & F. Hunter, eds.,
1916) 236-37.
FN4. The original version of the "visible punishments" clause in the
Vermont Constitution of 1777 tracked Pennsylvania's clause nearly word for
word. See Records of the Council of Censors of the State of Vermont (P.
Gillies & G. Sanford, eds. 1991) 15. Apart from minor amendments in 1786
substituting the word "means" for "houses," and "them" for "the prisoners"
in the last line, the provision has remained unchanged. See id. at 753.
Only one published decision has considered the provision. In Battick v.
Stoneman, 421 F. Supp. 213 (D.Vt. 1976), a Vermont prisoner unsuccessfully
challenged a planned out-of-state transfer to a federal penitentiary on the
ground that it violated his constitutional rights to due process and to be
free from cruel and unusual punishments. The prisoner's complaint also
asserted that the transfer violated Section 64, Chapter II of the Vermont
Constitution, but the court declined to address the claim, noting that it
had been abandoned at trial, and that the right to "visible
punishments"inured to the public, not the prisoner. Id. at 230 n.15.
FN5. The provision was amended in 1786 by replacing the words "within the
State" with "within the same." See Records of the Council of Censors,
supra, at 724. Otherwise, the provision remains unchanged to this day. See
Vt. Const., ch. I, art 21.
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