- Vermont allows for discretionary parole. Vermont does not have the death penalty.
- Vermont has discretionary LWOP and JLWOP. See 13 V.S.A. § 2303 (2012).
- Juveniles may be transferred to criminal court at age 10.
Vermont’s constitution does not expressly prohibit cruel, unusual, or excessive punishment. Nevertheless, some courts have looked to the following clauses as Vermont’s counterpart to the Eighth Amendment:
Chapter 2, § 39. [Forms Of Prosecutions And Indictments; Fines]
All prosecutions shall commence, By the authority of the State of Vermont. All Indictments shall conclude with these words, against the peace and dignity of the State. And all fines shall be proportioned to the offences.
Chapter 1, Article 18. [Regard to fundamental principles and virtues necessary to preserve liberty]
That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free; the people ought, therefore to pay particular attention to these points, in the choice of officers and representatives, and have a right, in a legal way, to exact a due and constant regard to them, from their legislators and magistrates, in making and executing such laws as are necessary for the good government of the State.
NOTE: The Vermont Supreme Court has suggested that the term “fines” in Section 39 should be interpreted to mean all punishments. Even if this were not true, the Court has suggested that the concept of proportionality is either inherent in the fundamental principles of justice discussed in Chapter 1, Article 18, or part of Vermont’s common law. The Courts that have acknowledged the existence of an Eighth Amendment counterpart in the Vermont Constitution generally recognize that the state constitution may be interpreted more broadly than the federal constitution. Nevertheless, these courts still rely predominantly on Eighth Amendment jurisprudence.
Sentencing Guidelines System – Vermont does not have sentencing guidelines
Habitual Offender Statutes –
13 V.S.A. § 11 (2010). Habitual criminals. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which, if committed within this state, would be felonious, commits a felony other than murder within this state, may be sentenced upon conviction of such fourth or subsequent offense to imprisonment up to and including life.
13 V.S.A. § 11A (2010). Violent career criminals.
An objection to a sentence cannot be raised for the first time on appeal. The matter must be raised in the trial court. State v. Kinney, 171 Vt. 239, 255 (Vt. 2000).
A trial court is afforded wide discretion in sentencing. See State v. Valentine, 2004 Vt. Unpub. LEXIS 5, 9-10 (Vt. 2004).
Vermont courts will decline to hear state constitutional issues unless they presented with substantive analysis. State v. Jewett, 500 A.2d 233, 222 (Vt. 1985). Substantive analysis should include arguments based on history, legislation, textual interpretation, comparisons between state constitutions, economics and sociology, and other helpful information. State v. Jewett, 500 A.2d 233, 226-28 (Vt. 1985).
Furthermore, “[n]o attorney briefing or arguing a state constitutional question before the Vermont Supreme Court should undertake his or her task without first reviewing Michigan v. Long, 463 U.S. 1032 (1983). In that case the United States Supreme Court said: [W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” State v. Jewett, 500 A.2d 233, 228 (Vt. 1985) (emphasis in the original).
State Constitution & Proportionality
Chapter 2, Section 39 of the Vermont Constitution requires that fines be proportionate to the offense. Some courts have interpreted this clause to require proportionality for all punishments in Vermont. State v. Burlington Drug Co., 84 Vt. 243, 249-250 (Vt. 1911); State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). Even if this were not the case, Chapter 1, Article 18 of the Vermont Constitution prohibits cruel and unusual punishment. State v. Burlington Drug Co., 84 Vt. 243, 249-250 (Vt. 1911) (the Vermont Constitution “asserts the right of the people to protection against excessive fines and cruel and unusual punishments as emphatically as it could have done by less comprehensive words”).
Compare this with State v. O'Brien, 106 Vt. 97 (Vt. 1934):
The Vermont Constitution does not contain an express prohibition against cruel and unusual punishment. Some have suggested that a prohibition against cruel and unusual punishment exists in Vermont as a principle of common law. State v. O'Brien, 106 Vt. 97, 107-108 (Vt. 1934). As part of an act of Parliament in 1688, “‘An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown,’ it was provided that ‘excessive bail ought not to be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.’” State v. O'Brien, 106 Vt. 97, 107-108 (Vt. 1934) (citing Ex parte Kemmler, 136 U.S. 436 (1890)).
The Supreme Court of Vermont has found “no relevant difference” between Chapter 2, Section 39 and the Eighth Amendment standards, and has therefore relied on federal jurisprudence in its interpretation of the state constitution. State v. Venman, 151 Vt. 561, 572 (Vt. 1989); see also State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997).
To violate Vermont’s proportionality clause, the punishment must be “clearly out of all just proportion to the offense.” State v. Bacon, 167 Vt. 88, 96-97 (Vt. 1997) (quoting State v. Venman, 151 Vt. 561, 572 (Vt. 1989)).
To analyze proportionality claims under the Vermont Constitution, the Vermont Supreme Court has adopted the Solem proportionality test, which examines: "'(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other [similarly situated] criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.'" State v. Venman, 151 Vt. 561, 571-574 (Vt. 1989), (quoting Solem v. Helm, 463 U.S. 277 at 292 (1983)); State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). The Vermont Supreme Court has “not reconsidered that holding in light of Harmelin, so our decision in Venman continues to control any claim by defendant under the Vermont Constitution. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997).
The second Solem criteria (comparison to sentences within jurisdiction) refers to the sentences statutorily authorized for crimes, not the sentences actually imposed on defendants. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997). Nevertheless, the Vermont Supreme Court may still find that such a comparison of sentences is proper under the Vermont Constitution, as the full reach of Chapter 2, Section 39 has not yet been decided. State v. Bacon, 167 Vt. 88, 96-98 (Vt. 1997)
The harshness of cumulative punishments is not important for a proportionality analysis. However, “[i]f the penalty were unreasonably severe for a single offense, the constitutional question might be urged.” State v. Venman, 151 Vt. 561, 571-574 (Vt. 1989)
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