You asked whether the law that prohibits releasing someone convicted of an offense involving violence before serving 85% of his sentence applies to those convicted before the law took effect. You also asked for an interpretation of a 2001 act that requires a report from the parole board. The Office of Legislative Research is not authorized to give legal opinions and this should not be considered one.

SUMMARY

PA 95-255 increased from 50% to 85% the amount of time that offenders who commit crimes involving violence must serve before being eligible for parole (certain crimes such as murder are not eligible for parole). The Connecticut Supreme Court recently ruled that this 85% rule only applies to someone who committed a crime after the provision's effective date, July 1, 1996. The court stated that statutes that impose new obligations do not apply retrospectively unless the legislature clearly and unequivocally expresses an intent to do so. The court ruled that the language of the act and its legislative history did not show an intent to apply the act retrospectively.

June Special Session PA 01-9, § 74 requires the parole board, by January 15, 2002, to report the number of prisoners eligible for parole under subsection (a) of the parole eligibility statute (CGS § 54-125a) who, by January 1, 2002, have completed 75% of their sentences and have not been approved for parole. Under subsection (a), prisoners who did not commit offenses involving violence are eligible for parole after serving 50% of their sentences in prison. The board must send the report to the Office of Policy and Management secretary and the Judiciary, Public Safety, and Appropriations committees.

The act also requires the board to report by February 15, 2002, and by the 15^th of each subsequent month, the number of "such persons" who have completed 75% of their sentences in the preceding month who were not approved for parole. On its face, the reference to "such persons" is ambiguous. "Such persons" who have completed 75% of their sentence could mean all prisoners who have completed 75% of their prison sentence. But reading the reporting requirements as a whole, "such persons" appears to refer back to the requirements for the original report. "Such persons" would be those eligible for release after serving 50% of their sentences but who have not been released after serving 75% of their sentences. Therefore, it appears that the monthly reports require the same information as the original report.

Attached are copies of the Supreme Court case, the provision requiring the Board of Parole's reports, and copies of the board's reports from January 15, 2002 and February 14, 2002.

CONNECTICUT SUPREME COURT DECISION

The Connecticut Supreme Court in Johnson v. Commissioner of Correction considered whether the 85% rule applied to someone who committed a crime before the rule took effect but who was convicted after that date (258 Conn. 804 (2002)). The case involved someone who committed crimes on November 10, 1995. At that time, inmates were eligible for parole after serving 50% of their sentence. In 1995, the legislature adopted PA 95-255 which included a provision requiring people convicted of crimes involving violence to serve 85% of their sentence before becoming eligible for parole (certain crimes, like murder, remained ineligible for parole). This provision took effect on July 1, 1996. The parole board interpreted the act as applying to offenders sentenced on and after July 1, 1996.

After resolving jurisdictional issues, the court stated that whether the provision applied retrospetively or prospectively depended on the legislature's intent. The court cited CGS § 55-3, which states that a provision of the general statutes that was not previously in the statutes that imposes a new obligation is not retrospective. The court stated that this is a rule of presumed legislative intent for statutes that affect substantive rights but it does not apply if the legislature clearly and unequivocally expresses its intent that legislation apply retrospectively. The court also stated that criminal statutes are construed strictly against the state.

The court looked at the act's language and its legislative history. It considered various arguments based on the act's language and did not find evidence of intent to apply the provision retrospectively. The court also found that the legislative history provided no clear indication of intent to apply the provision retrospectively.

The court cited comments by Senators Thomas Upson and George Jepsen during the Senate debate and testimony at the Judiciary Committee's public hearing that the provision applied to offenses committed after its effective date. But the court also cited comments by Representative Michael Lawlor who stated in the House debate that the bill affects all people currently incarcerated. The court stated that absent any clear statutory language to support this interpretation and in light of the other legislative history, these comments did not overcome the presumption against retroactivity.

The court also stated that statutes are interpreted to avoid constitutional questions. The court stated that interpreting the provision to apply retrospectively would raise concerns under the ex post facto clause of the constitution because the provision arguably makes the punishment for a crime more burdensome after its commission.

The court also noted that applying the parole board's interpretation created incongruous results. The court stated that under the board's interpretation, different parole eligibility rules could apply to people who committed a crime at the same time before the law took effect. If one were convicted and sentenced before the law took effect, he would be subject to the 50% rule. If the other, due to delays in the justice system he did not cause, was convicted and sentenced afterward, he would be subject to the 85% rule.

The court concluded that the provision only applies prospectively to people who committed crimes after July 1, 1996. In this case, it did not apply to the defendant because he committed his crimes before the act took effect. Thus, the old parole provision applied and he was eligible for parole after serving 50% of his sentence.

CR: ro