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COVID-19 Reduced Incarceration To Levels Reformers Had Only Dreamed Of. Will It Last?

A white piece of paper with a child's words written plese do not bring my dad to jail
Brian Foy, Courtesy
JJ, who was 8 years old in 2019, wrote this note when her father's parole office arrived at their home in Johnson.

In green magic marker, 8-year-old JJ made a sign on a piece of white construction paper.  “Plese Do not Bring my DaD to Jail,” it said. 

It was December 2019, and the parole officer who kept tabs on JJ’s father was inside their house. The last time the man had come around in early July, he’d taken her father, Brian Foy, to prison. Foy had just come home. This time, the officer left without incident.

Foy was convicted of larceny in 2015, and the Department of Corrections had granted him furlough, which allowed him to serve time at home under the supervision of Vermont parole and probation officers.

The thing about furlough is — the Department of Corrections can take it away at any time. After an altercation with a neighbor, Foy’s parole officer booked him in prison for violating the conditions of his release, what’s called a “technical violation.” He spent the next five months behind bars.

If the altercation had happened this summer instead of last summer, Foy may have avoided prison altogether. So what’s changed?

The answer: COVID-19.

Efforts to reduce the spread of COVID-19 to staff and inmates as led to levels of decarceration which reform-minded policymakers could only dream of months before.

More from Brave Little State: How Are Prisons Handling COVID-19?

A recent policy report suggested cutting the state’s prison population by 100 people over five years. After COVID-19 hit Vermont, the incarcerated population dropped by nearly 300 in just two months, which is more than the number of people the state has, for years, relied on private contracts to incarcerate out of state.

As Director of Field Services, it is Dale Crook’s officers who determine when someone like Foy ought to go back to prison.

“You know, we have kind of changed how we’ve done supervision,” he said.

In spring of last year, Crook’s division brought an average of 126 people back to prison each month on technical violations. In April of 2020, it returned only 19 people — an 85% decline. 

On mobile? Click here to see the infographic.

Crook said a number of factors have contributed to the drop. After COVID-19 hit Vermont, his division suspended its office visits. He instructed officers not to enter subjects’ homes. And, Crook said, police departments also ratcheted down their activity, leading to fewer referrals. 

At the same time, Crook said his office has stopped using short terms of incarceration to sanction offenders. He added his division still addresses serious violations which threaten public safety with home-searches and reincarceration.

All this is vindication for reformers like James Lyall, Executive Director of the Vermont ACLU. 

“Vermont finally took an approach to its criminal justice system that accomplished the kinds of reductions in prison population that we've been calling for for years, that could have been accomplished a long time ago, pre-pandemic, and that should absolutely be maintained and built upon,” he said.

Lyall noted the primary recommendation by the Council of State Governments after its six-month “Justice Reinvestment II” analysis was to reform Vermont’s system of community supervision. Some of those recommendations were incorporated into a “justice reinvestment” bill which Gov. Phil Scott recently signed into law.

Lyall said DOC’s response to the pandemic has proven that law enforcement can keep people out of prison without jeopardizing public safety.

On that front, Washington County State’s Attorney Rory Thibault said “the jury is still out.” He thinks more analysis will be necessary before policymakers can understand the consequences of the pandemic on field services supervision.

For example, Thibault said, his county saw a near-doubling of domestic violence case filings in April and May, although those numbers returned to previous levels in June.

Vermont State Police also provided data to VPR showing its domestic violence reports had increased by 48% in the first half of 2020 compared to the first half of 2019.

Of course, correlation does not imply causation.  The state police data could also be tied to school closures, unemployment, the governor’s “Stay Home” order, and other factors.

A bar graph provided by Vermont DOC.
Credit Department of Corrections, Courtesy
A page from the Department of Correction's data report on prison releases during the first half of 2020. It shows that Vermont's Department of Corrections released a large number of inmates in March, but not more than it released in January, well before COVID-19 was identified in Vermont.

More from VPR: NHPR's New Podcast Follows Parolee From Prison To 'A Kind Of Purgatory'

Chittenden County’s famously reform-minded State’s Attorney Sarah George said she welcomes the reduction in incarceration: “The sooner we can safely release people, the better we all are.”

George said she likes to think her office doesn’t incarcerate people who can safely remain in the community. But even for her, she said, the pandemic has inspired self-reflection.

Early on in the pandemic, George said DOC asked her staff to review individuals they had asked to detain with or without bail while awaiting trial. Some, they determined, could be released.

“And then when you're forced to really reflect on those decisions… there’s definitely been learning,” she said.

More from VPR: Vermont Is Trying To Shrink Its Prison Population, But 350 Inmates Are Locked Up Past Their Minimums

George added she’s not optimistic the recently-passed “justice reinvestment” act will keep Vermont’s prison population numbers down on its own.

“If there isn’t continued pressure to keep that number down, I fear, like most of our system, we’re going to trickle back into doing the same thing we’ve always done,” she said.

Indeed, the numbers are already ticking upward. In June, the Department of Corrections booked twice as many people on technical violations as it did in April. 

Brian Foy was one of them. He’ll be incarcerated at the Northeast Correctional Complex in St. Johnsbury until mid-August.

Update 11:05 a.m. 9/15/2020: This story was edited to change the name of Brian Foy's daughter at her parent's request due to concerns about anonymity.

Have questions, comments or tips? Send us a message or tweet reporter Emily Corwin @emilycorwin.

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