“The degree of civilization in a society can be judged by entering its prisons.” ― Fyodor Dostoevsky

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Vermont’s only prison for women is, by all accounts, a ghastly place. The facility was never intended to be a prison. The facility was never intended to house women. Built as a men’s detention center in the 1970s, the facility is inadequate to provide what any reasonable person would consider adequate health and safety conditions for as many as 160 incarcerated women.

The Vermont women’s prison, formally known as the Chittenden Regional Correctional Facility (CRCF) in South Burlington, came into being in August 2011 as a political effort to reduce the state budget pushed by then Governor Peter Shumlin, a military-industrial Democrat who also supported basing the nuclear-capable F-35 in Winooski. Shumlin pushed both projects with grand promises of benefits that have yet to be fulfilled.

In 2011, everyone knew the women’s prison was being placed into a deteriorating and inappropriate facility, but rehabilitation and new construction were promised. And the change gave prison reformers hope that bringing all of Vermont’s women prisoners to one location would create “an opportunity to create a new correctional paradigm” that would better serve community needs.

By February 2012, prison reformers wrote a white paper warning that:

… there are disturbing signs that we’re not only falling short of the Governor’s vision, but are on track to erode a decade’s worth of progress in our work with incarcerated women. We must face this reality squarely and address the conditions at CRCF before policy and practice are fully formed, before we forget that the move was to be so much more than a cost-saving measure. Immediate steps must be taken to ensure the health, safety and human dignity of Vermont’s incarcerated women.

The white paper detailed four pages of shortcomings at the women’s prison, including an “ailing physical plant and crowded conditions that compromise physical health, personal safety, and human dignity.” The list included “worms and sewer flies” coming out of the prison’s only two shower stalls.

Almost nine years later, that condition persists unabated and Vermont Superior Judge Samuel Hoar Jr. treats it as a meaningless triviality. In a December 8, 2020, court decision defending the Department of Corrections, Judge Hoar wrote:

There is no competent evidence, however, to suggest that any aspect of the condition of the H2 shower room is anything more than episodically unpleasant. Specifically, no evidence supports a finding that there is any kind of health or safety risk, much less that any aspect of the shower room’s condition has caused injury or medical issue of any kind. In short, like an outdoor privy, the shower room may not be a place where one would choose to linger, but it appears to serve its most basic function.

Judge Hoar’s sanitary obtuseness might seem breathtaking coming from any neutral observer. But Judge Hoar has a documented history of callousness toward women for which he felt compelled to apologize publicly in order to retain his seat on the bench in 2019. His apology was substance free, verbally contorted, and not a little narcissistic. A sample: “I want to do everything I can to feel that I never feel how these two women have felt and that I change and improve to address the other negative comments that I have received.”

Judge Hoar’s written decision in Conte vs. Touchette et al is full of similarly tortured language and a muddied argument that affirms the plaintiff’s complaints only to say they don’t matter. Most of his discussion involves a legalistic pondering of whether the Department of Corrections has a duty, as state law puts it, to “maintain security, safety, and order” at correctional facilities. Judge Hoar cites this statute, even though it refers to responding to “disorder, riot, or insurrection,” not forcing inmates to shower in a virtual outhouse.

Conte vs. Touchette is an action brought by an inmate of the women’s prison, Mandy Conte, who has been incarcerated there since February 2019. Later that year she wrote to the Vermont weekly Seven Days with allegations that male prison guards had sexually assaulted other women inmates. The paper investigated, the charges stood up, and the public scandal led to a number of dismissals and resignations, including then Director of Corrections Mike Touchette.

Also in 2019, Mandy Conte formally grieved the condition of the prison showers through the prison grievance process. As Judge Hoar acknowledges, she followed the grievance process to its logical conclusion despite receiving denials each step of the way. In September 2019 she filed suit in Superior Court against the Department of Corrections (while Touchette was still commissioner). Attorney Kelly Green, a staff attorney in the Prisoners’ Rights Office of the Office of the Defender General, represented Mandy Conte. Five days before the October 20 trial, Green tweeted with reference to the women’s prison:

It’s disgusting. Come to my trial next week about the sewer flies and mildew in the shower room. About 35 women must use two shower stalls and there is no working ventilation.

In the shambles of his written decision, Judge Hoar does not make detailed, explicit findings of fact but rather sprinkles them somewhat randomly through his argument. His approach is tentative. He says that the drain and ventilation systems “appear” to be showing their age,” that the drain system “appears” to breed sewer flies, and that the Corrections Dept. “appears” to have taken reasonable remedial steps. In a revealing footnote, Judge Hoar writes:

Notably, there was no testimony as to what a “sewer fly” is, much less whether or in what degree of infestation “sewer flies” are either themselves a health risk or symptomatic of some other condition that is itself a health risk. If either of these facts is a matter of common knowledge, that is an element of knowledge that has nevertheless eluded the court, and so requires expert proof.

This footnote seems to reveal something like judicial malpractice. That sewer flies are unacceptable was unchallenged by either side, so why does the judge make it an issue after the trial if not to support his apparent bias in the state’s favor? The state’s behavior acknowledges the sewer fly problem by trying to eliminate it time and again. The sewer flies have been a chronic problem documented over more than nine years. If the judge needed edification on a matter agreed to by opposing sides, he had a responsibility to inquire on the record, not ambush the parties after the fact.

Judge Hoar does not mention the worms, leeches, or maggots that have been identified in the prison shower. He does not mention the smell even though Mandy Conte testified, “It smells like a sewer.” He does not mention Mandy Conte’s foot infection attributed to the shower filth in court papers. The judge’s evidentiary findings are demonstrably selective, all favorable to the state.

Whatever his motivation, Judge Hoar’s order is a travesty of human decency even more than judicial process. He wrote: “The outcome might be different if there were proof of actual threat to health and safety.” Then he quoted a 1992 case that appears to reveal his perspective:

Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a ‘conditions-of-confinement’ claim.

Judge Hoar here seems to imply that nine years of sewer-like conditions, with repeated outbreaks of sewer flies, worms, and leaches, with pools of standing dirty water, and with poor or no ventilations is somehow not an extreme deprivation. Really? This is a fundamentally primitive view of prison policy, a view Vermont has prided itself on improving. Vermont is considered one of the most enlightened states in the country on prison policy. But policy makers like Judge Hoar illustrate why, compared to other countries on a global scale, Vermont is in the bottom ten per cent.

Vermont is one of the best of the United States. The United States has more than 2 million prisoners, perhaps most of them in unconscionable conditions, especially those in private prisons or ICE custody. The cruelty and psychic numbing portrayed by Judge Hoar are part of a vast national problem of long standing.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

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