Last Sunday morning’s press release from the Burlington Police Department had an all-too-familiar ring: The night before, on May 14, 43-year-old James Gagner allegedly led Burlington police on a high-speed chase through the Old North End in a stolen car before hitting a tree and fleeing on foot. Although no one was injured in the crash and the suspect was taken into custody without incident, Gagner was already wanted on two outstanding warrants, including one for violent offenses: unlawful restraint and aggravated domestic assault. The reason for his other warrant: escape from furlough supervised by the Vermont Department of Corrections.
Gagner’s case is the latest in a string of high-profile crimes perpetrated by offenders who were out on furlough — that is, on supervised release from correctional custody. At a time when the Vermont DOC is facing both political and budgetary pressures to release more low-level, nonviolent offenders back into their communities — S. 108, which passed the Senate last month, would give the DOC even more authority to furlough offenders — a number of those individuals have gone on to commit more violent, headline-capturing offenses. Does this represent a statistical blip, or a trend that warrants closer examination of the furlough process?
Consider some of the crimes committed recently by furlough escapees: On Tuesday, March 22, Robert Berard held Richmond police at bay for seven hours in an armed standoff after he locked himself in a trailer and refused to surrender. Berard, 29, had been released from prison in February after serving time for a violent home invasion in Colchester, but quickly violated the terms of his release. Police eventually stormed the house and found Berard dead of a self-inflicted shotgun wound.
On April 26, Jeffrey Raymond Davis of Johnson was shot by Vermont state troopers while he led them on a high-speed chase on I-89 — from Barre to Williamstown, at speeds exceeding 90 miles per hour — during which, police say, he rammed several police cruisers. Davis, 27, already had a history of trying to elude the cops. In January 2010, DOC officials say, he walked away from furlough and was sentenced to an additional 10 to 12 months behind bars.
“We know that this is not an isolated incident for him, rather a pattern of behavior,” Major Walter Goodell, of the Vermont State Police, told WPTZ News. “We’re thankful that Jeffrey Davis’ actions did not place more people in danger or injure more troopers more seriously or members of the public more seriously.”
On May 10, Brian Aubuchon of Randolph was arrested by police in Springfield, Mass., in connection with a May 9 robbery of the Mascoma Savings Bank in Hartland. Aubuchon, 34, was already wanted as an escapee from furlough stemming from a 2010 robbery in Braintree. Although his arrest last week didn’t turn up a weapon, Aubuchon allegedly told bank tellers that he had a gun.
Do these and similar cases cast an unfavorable light on who is being set free? Commissioner Andrew Pallito claims no. Although high-profile crimes committed by repeat offenders are bound to attract media attention, he points out that they actually reflect only a tiny percentage of the total number of individuals released from DOC custody each year. Moreover, he says, the percentage of criminal court cases involving offenders under correctional supervision has been steadily declining in recent years, from 24 percent six years ago to 17 percent today. “We’re always watching the data, and [the percentage has] really dropped off,” Pallito asserts.
It should be noted that when police or the DOC report an individual has “escaped” from furlough, that doesn’t mean an inmate has absconded in a laundry truck or scaled a prison wall. In fact, an offender on furlough is already living and working in the community and must abide by the terms of release set forth by the DOC. Typically, that means no drug or alcohol use, regular check-ins with a probation and parole office, set times when the prisoner must be at home, random house checks, and so on.
Moreover, as Pallito explains, there are several ways an offender may be living in the community: under correctional supervision, or on probation, parole or preapproved furlough. In the cases of probation and preapproved furlough, the sentencing judge determines the criteria for that individual’s release — that is, the timing and conditions under which the offender may be released. For parolees, the parole board sets the conditions.
Only in cases of furloughed inmates does the DOC get to spell out the criteria for the offender’s release.
In most cases, Pallito contends, his department does a “pretty elaborate risk assessment” of an offender’s likelihood of reoffending, though he admits, “It’s not 100 percent perfect.” Moreover, as Deputy Commissioner Lisa Menard explains, even in furlough cases, the DOC has limited latitude as to when an offender may be released if he or she has already served the statutory minimum sentence.
For example, the DOC can justify holding an inmate who’s eligible for furlough for only two reasons: One, if the department can demonstrate that the inmate poses a “clear and identifiable risk of harm to a specific person.” Two, DOC can deny furlough if it can prove that the offender’s level of risk cannot be adequately managed within the community.
“We have both the authority and the liability to manage people’s risk, and we’re a department that’s experienced a lot of pressure on our budget,” Pallito says. “For the last 20 years we’ve put a lot of pressure on probation and parole offices to keep people moving through the system, but there’s a lot of resistance [in communities]. So, it’s a balancing act.”
That “balancing act” involves the courts as well. If the DOC overrides an offender’s furlough request, the burden of proof is on the department to prove the inmate shouldn’t be let free. “We get ruled against by the courts frequently,” Pallito says.
Consider, for example, the case of convicted sex offender Michael Potter of Quechee, who was sentenced to 20 years in prison for attempted murder and lewd-and-lascivious conduct in a 1997 attack. Potter spent an additional 19 months behind bars because, the DOC argued, he didn’t have state-approved housing to qualify for release. However, in July 2010 a judge ordered him released.
“Not a nice guy,” Pallito acknowledges, “but we had to let him out because the court ordered us to let him out.” Just weeks ago, he adds, Potter violated his conditions of release when he was found with pornography on his computer.
Part of the problem, explains Deputy Commissioner Menard, is that more than 70 percent of the individuals under correctional supervision come into the system with a history of substance-abuse problems. And, as with most people who struggle with addiction, it typically takes five or six attempts before a person gets clean, she says. In the Richmond police standoff case, for example, Berard was known to have struggled with substance-abuse issues and, as Pallito notes, was found in “a place where you satisfy your addiction needs.”
As a result, an “escapee” may simply be an offender who’s “on a bender for 24 hours” and doesn’t answer the door, Menard says. In the past, the DOC would automatically get an arrest warrant and immediately notify the National Crime Information Center.
“But the state police weren’t happy with that. It wasn’t an efficient use of their time,” she says. Today, Menard notes, the DOC will allow offenders a bit more time before starting that process, depending upon their offense. Once offenders sober up, they usually turn themselves in.
“Then again, if we go to your house and it’s empty, your suitcases are gone, and the landlord says you moved out, you’re going to get a warrant right then and there, no fooling around,” she says.
What do local police agencies say about the job the DOC is doing managing its furloughed offenders? While none was willing to go on the record openly criticizing the work the DOC is doing, several officials did say that they’ve struggled to get adequate information about DOC clients in their community, as well as adequate and timely notification when those individuals go missing.
Burlington Police Deputy Chief Walt Decker says his department has “a very robust relationship with the Department of Corrections about channeling information in a timely manner.” In part, he attributes that working relationship to the volume of people in Burlington who are under DOC supervision.
Decker couldn’t comment specifically on Gagner’s case or how the details were communicated to his officers, as he hadn’t reviewed the case yet.
“But if the Department of Corrections is looking to have a greater number of individuals under supervision in the community,” he adds, “then it’s going to be critical that they have the resources they need to adequately manage and supervise the persons in their custody.”
|Average daily number of offenders under supervision in Vermont communities in 2010.|
|Average daily number of Vermont offenders out on furlough.|
|Vermont’s national rank among the states in overall use of probation and parole.|
|Amount Vermont DOC spends annually on substance-abuse services behind bars.|
|Rank of Vermont’s violent crime rate in 2006 compared to other states.|
|Vermont Department of Corrections spending in 2008.|
|Vermont Department of Corrections spending in 1996.|
|Increase in national incarceration rate from 1996 to 2006.|
|Increase in Vermont’s incarceration rate from 1996 to 2006.|
|Percentage of Vermont offenders reconvicted of a new offense within three years.|
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