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ACLU warns DOC placement of Vermont forensic facility could invite constitutional challenge
Summary
The ACLU told the House Corrections & Institutions Committee that placing a new forensic facility under the Department of Corrections risks making it carceral in practice; the group urged a feasibility study and statutory language that ensures therapeutic design and shared authority to reduce legal and operational risk.
Jordan Souer, a policy advocate for the ACLU of Vermont, told the committee the ACLU supports creating a forensic facility in principle but is deeply concerned about housing it under the Department of Corrections. "Prison systems are not, nor have they ever historically been a therapeutic environment," Souer said, adding that DOC facilities are overcapacity and understaffed and that those conditions "call into question DOC's capacity to effectively manage a forensic facility."
Why it matters: Souer said centralizing authority in DOC raises constitutional concerns about whether a facility designed for evaluation and treatment could operate distinctly from incarceration. The ACLU did not assert the bill is unconstitutional on its face but warned that the risk is high "as applied" if the facility becomes functionally similar to a prison. Souer recommended a feasibility study before committing to DOC oversight and proposed more formalized statutory arrangements—such as shared authority between DOC and the Department of Mental Health or clearer statutory requirements for therapeutic design—to mitigate legal risk.
Committee members asked whether a constitutional challenge would arise on passage or only at implementation; Souer replied that much depends on how the facility is implemented and urged the legislature to study other states’ approaches and consult constitutional scholars. Committee members discussed potential mitigations, including shared oversight or more concrete bill language to formalize therapeutic priorities and distributed authority across agencies. Souer also noted the bill contains an interim-report mechanism the committee could use to re-evaluate placement decisions once more implementation details are available.
What happens next: The committee agreed to consult House Judiciary's recent testimony, consider bringing in DMH and DOC to answer operational questions, and examine whether the interim report and potential feasibility study should be specified in draft language.
