click to enlarge Matt Morris

Lawmakers have spent years debating how to house all of Vermont's prisoners within its borders. But two decades after the state began outsourcing incarceration, more than 200 Vermont inmates remain locked up in a private prison in Mississippi.

"It is not acceptable for people to just talk about bringing people back from out of state but then not do the work in Vermont to see if that can be done," said Senate President Pro Tempore Tim Ashe (D/P-Chittenden), the latest politician to take up the cause. "If we really believe that's something we want to happen, now we have to do the hard work to develop the strategies that will make it a reality."

Last month, he called on his fellow senators to do that hard work. The "Ashe challenge," as Senate Judiciary Committee chair Dick Sears (D-Bennington) calls it, is to reduce Vermont's average daily prison population by 250 before 2022. That would bring the total number of prisoners below 1,500, the maximum capacity of Vermont's in-state prison system.

Lawmakers said they would ask, among other questions, whether there are ways to divert more low-level offenders from prison, reduce the number of people in pretrial detention, and address the lack of post-release housing and supervision that keeps some inmates in prison longer than necessary.

There are powerful reasons to incarcerate fewer offenders, if it can be done safely. Vermont pays CoreCivic, the operator of the Mississippi penitentiary, $25,915 a year per prisoner. And locking up an offender in the state's own prisons is more than twice as expensive: $61,000 a year, according to Corrections Commissioner Mike Touchette.

The fiscal savings from reducing the prison population could free up cash for drug-treatment programs and other state priorities.

More importantly, Ashe argued, there's a moral imperative to bring inmates home to Vermont and to make the justice system work better. He said the more than $5 million paid to CoreCivic each year is money that could be used to pay for programs that reduce incarceration.

Vermont needs a "balance between public safety and accountability and returning people to productive society," Ashe said. "There are many people who, when they face addiction challenges, do things that don't really reflect who they are ... And I think we know there are people behind bars who have a future that could be redeemed with the right support."

Vermont has already made substantial progress in reducing its prison population — which makes further progress more challenging. The number of people incarcerated has dropped by more than 500 since it peaked at 2,248 in 2010. In January, the state Department of Corrections reported it was holding 1,673 prisoners in Vermont and Mississippi. Ashe describes his challenge as a way to bring about the final policy push to do away with the need to ship offenders out of state.

Touchette said he supports Ashe's goal. He has asked all corrections workers to contribute suggestions for how to meet the challenge.

"Our staff work with the population on a daily basis and have incredible knowledge of the challenges, barriers and resources that prevent crime, reduce recidivism and support safe communities," Touchette said last week.

But looking at the inmate population in detail reveals the complexity of reducing those numbers.

For starters, Touchette said, 756 of the 1,673 inmates being held in January were serving time for one or more of the "big 12" felony offenses, a list that includes murder, sexual assault, fatal arson and kidnapping. The vast majority of those people can't be released without putting the public at risk, he said.

There's a similar obstacle to reducing the number of people being held in prison while they await trial. Touchette said 231 of 380 people in temporary detention during the January count were facing a big 12 felony charge.

"Nothing was low-hanging fruit before, but [programs] like diversion ... helped get some of the low-level offenders to other pathways, which means that the remaining population on average is a harder population to address," he said.

There's another way to end the state's use of out-of-state prisons. In fact, Ashe notes it's the only plan on the table that would accomplish the goal for sure. It's Gov. Phil Scott's proposal, unveiled last year, to build a prison complex in Franklin County large enough to house about half of Vermont's existing inmate population. Added to existing prison beds around the state, it would expand the state's prison capacity to meet current demand.

The administration repeated its pitch for the 850-bed "campus for corrections" this year, but lawmakers haven't appropriated any money so far in support of the idea.

The question, it seems, is whether lawmakers should expand the supply of prison beds or find new ways to reduce the demand for them.

"We should be coming up with good policies and smart strategies to reduce the number of people incarcerated," Ashe said. "That should be the way we solve the out-of-state prison population. Not just by building more prisons."

Lawmakers recognized a decade ago that one of the best ways to reduce the prison population was to keep people out of jail in the first place. They passed a battery of reforms designed to expand the number of cases that could stay out of the corrections system. Courts and prosecutors were given the option of requiring restorative justice and treatment instead of prison for low-level offenses often related to mental health problems or drug addiction. Restorative justice, which requires that participants apologize and give back to victims and the community, is touted as fostering better outcomes for all parties and is far cheaper than prison.

Those alternative justice programs have been effective. The inmate population declined steadily for a time but has leveled off in recent years.

"The hard part here is: What do we do to get below 1,500?" said Attorney General T.J. Donovan. "No. 1, it's front-end work making sure that we have alternative justice programs in every county."

Many of Donovan's early accolades as Chittenden County prosecutor came from his use of a Rapid Intervention Community Court, one version of an alternative justice system.

After his campaign for attorney general in 2016 — during which Donovan himself promised to ban the use of out-of-state prisons — the new AG moved to make similar rapid intervention programs available around Vermont. He said whatever other steps are taken to achieve Ashe's goal, part of the solution is making sure there's equal opportunity across the state for criminal suspects who would be better served by treatment and counseling than by time behind bars.

Committees in the House and the Senate are also considering whether there are ways to reduce the number of defendants imprisoned while they await trial — roughly 400 people at any given time. Sears, the Senate Judiciary chair, said he sees opportunities to let more people wait for their court date in the community in which they live.

For one thing, he said, most states have officials who are specifically designated to supervise people who have been released pending trial.

"We don't do that," Sears said. "We may order somebody to go to the police station once a day, but nobody's responsible to supervise their compliance with the requirements of release."

Closer supervision could give courts and corrections officials the confidence that more detainees can be safely released into the community before trial or while they're on parole, Sears said.

He also pointed out that the state doesn't make much use of its existing electronic monitoring program, which allows authorities to keep track of individuals using GPS ankle bracelets. He wants to find out how to get officials to use that system more.

"There's only 13 people on it," Sears said.

Rep. Alice Emmons (D-Springfield) has been chair of the House Corrections and Institutions Committee for more than a decade. She said this isn't the first time the legislature has looked into possible reductions in the pretrial detention population.

"When you do a deep dive, it's not as simple as you think," she said.

Still, Emmons said the House Ways and Means Committee put money in this year's supplemental state budget to study the specifics of the pretrial population. She hopes for insights about what changes would have the biggest impact.

Others see opportunity among an entirely different population: Convicted inmates who have already served much of their sentence. Defender General Matt Valerio said those focused on diversion and prevention are "looking at the wrong end of the funnel."

According to Valerio, too many inmates are being held for too long.

"There are people who are serving time right now who have completed all of their [work and classes], and there's nothing more for them to do except for sit and wait to get out," he said.

There's a name for that part of a sentence, Valerio said: "dead time."

While lawmakers including Emmons and Sears said Ashe's goal of a 250-person reduction in Vermont's prisons is "a high bar to reach" and "ambitious," Valerio described it as fairly simple: identify all the inmates serving dead time at the end of their sentence and let them out.

"The bottom line is ... they're going to get out in six months anyway, or a year or whatever," Valerio said. "What is the difference between letting them out now or letting them out later? The difference is paying for 200-plus beds."

Sears said there's already one bill in the works to shorten sentences through "earned good time," which would decrease jail time for inmates who have completed programming and behaved appropriately while incarcerated.

But scores of inmates have already served their minimum sentences and are still in prison. The problem, Donovan said, is a simple one: "housing, housing, housing."

In the Department of Corrections' January count, 121 inmates were incarcerated past their minimum release date. Many continued to be held, Touchette said, because there wasn't supervised housing available or because they couldn't find an apartment or their family refused to house them after their release. The Department of Corrections doesn't release inmates before the end of their maximum sentence unless they have somewhere to go that officials deem safe for the inmate and the community.

Touchette said his department issued a request for proposals in October 2016 and in November 2017 seeking transitional housing for sex offenders.

"We had no inquiries nor bids," Touchette said.

Given all these challenges, nobody's saying Ashe's goal will be met by 2022 — not even Ashe himself. He said the purpose of his challenge was to ask, once and for all, if Vermont could finally end its reliance on out-of-state prisons without building a new one.

"Can it be done?" Ashe wondered. "What would it take?"

Disclosure: Tim Ashe is the domestic partner of Seven Days publisher and coeditor Paula Routly. Find our conflict-of-interest policy here: sevendaysvt.com/disclosure.