Prison Overcrowding Proposed Substitute

You asked for a section-by-section summary of LCO No. 2604, the proposed substitute for the prison overcrowding bill (HB 5211).

Under current law, the Board of Pardons and Board of Parole are part of the Department of Correction (DOC). The bill combines the Board of Pardons and Board of Parole into the Board of Pardons and Paroles and makes them part of DOC for administrative purposes only.

Beginning July 1, 2004, the new board consists of 13 members appointed by the governor with the consent of either house of the General Assembly (under current law, the Board of Parole has 15 members and the Board of Pardons has five members appointed in this manner).

The bill ends the terms of members of the parole board on June 30, 2004. New members serve for the length of the governor’s term. Under current law, the parole board chairman and vice-chairman serve for the length of the governor’s term and members serve four-year terms and pardons board members serve six years.

The bill requires the governor to appoint the chairman from among the members and the person must be qualified by education, experience, and training in administering community corrections, parole, or pardons.

The bill authorizes the chairman to sit on both pardons and parole release panels. He must assign seven members exclusively to parole release hearings and five to pardons hearings. Except for the chairman, no member assigned to one type of hearing can later be assigned to the other.

The bill requires the chairman or his designee and two members to conduct all parole hearings and approve or deny all parole release, revocation, or rescission recommendations from a board employee.

Under the bill, pardons panels consist of three members. The chairman can be one of the members but he must be on the panel for hearings on commutation of the death penalty.

The bill requires the board to hold a pardons hearing at least every three months. The hearings must be in various geographic areas of the state and the board cannot hold hearings within or on correctional facility grounds unless solely for the benefit of applicants incarcerated at the time of the hearing.

The bill makes the chairman of the Board of Paroles and Pardons instead of the DOC commissioner the executive and administrative head of the board and requires him to:

1. oversee the board’s administrative affairs;

2. adopt regulations for procedures for all areas of pardons and paroles, including granting pardons, commutations, or releases; risk-based structured decision making; and release criteria (current law requires the DOC commissioner to set policies in all areas of parole including decision making, release criteria, and supervision standards);

3. consult with DOC on shared issues including prison overcrowding;

4. consult with the Judicial Branch on shared issues including community supervision; and

5. sign and issue subpoenas to compel witnesses to attend and testify at parole hearings.

The bill requires the chairman to appoint an executive director who has many of the functions of the DOC commissioner under current law. The executive director must:

The bill requires the chairman, in consultation with the executive director, to adopt regulations (1) for parole revocation and rescission hearings that include due process requirements and (2) requiring board members in pardons hearings to issue written statements of the reasons for rejecting an application.

The bill requires the chairman to adopt regulations, rather than policy, to administer the Interstate Parole Compact.

The bill also requires regulations to establish an administrative pardons process that allows people convicted of a crime to receive a pardon without a hearing, unless a victim requests a hearing, if the person was:

convicted of a misdemeanor and (a) it is no longer a crime, (b) he was under age 21 at the time of the conviction and has no convictions during the 10 years before receiving the pardon, or (c) he was convicted before pretrial programs were created that the person would have been eligible for and likely participated in;

The pretrial programs are the alcohol and drug dependency program, pretrial family violence education program, alternative incarceration program, community service labor program, accelerated rehabilitation, pretrial alcohol education program, pretrial drug education program, and pretrial school violence prevention program.

The bill also requires the chairman and executive director to create an incremental sanctions system for parole violations that includes, but is not limited to, re-incarceration based on the type, severity, and frequency of the violation and specific periods of incarceration for certain violations.

The bill requires the chairman and executive director, in consultation with DOC, to develop a parole orientation program for inmates eligible for parole when they are transferred to DOC custody. The program must include general legal information and policies on release, calculating time-served, conditions of release, supervision practices, revocation and rescission policies, and procedures for administrative review and panel hearings. It must include any other relevant information to prepare inmates for parole.

The bill makes the Board of Pardons and Paroles the successor to the Board of Pardons and Board of Parole, substitutes the new board whenever the others are used in the statutes or 2003 and 2004 public acts, and requires the Legislative Commissioners’ Office to make necessary changes.

By law, someone is eligible for parole after serving 50% of his sentence unless he (1) committed a crime where the underlying facts and circumstances involved the use, attempted use, or threatened use of force, which makes him eligible after serving 85% of the sentence or (2) committed certain serious crimes that are ineligible for parole.

The bill requires the release on parole of certain inmates (1) who are eligible for parole after serving 50% of their sentences but who have not been released to parole by the board after they have served 75% of their sentences and (2) who are eligible for parole after serving 85% of their sentence when they reach the 85% mark. These inmates are those who do not have a:

Anyone released under this provision remains under DOC custody and is subject to supervision by DOC during the person’s parole.

The bill allows the Board of Parole, in consultation with DOC, to schedule the release of people who become eligible for release under this provision on the bill’s effective date to be released according to the availability of (1) parole officers to provide supervision and (2) community-based programs to provide housing and services.

The bill allows people convicted of an offense committed with a firearm in, on, or within 1,500 feet of elementary or secondary school grounds to be eligible for parole. (People convicted of these crimes would be subject to the existing parole eligibility requirements and likely would be eligible after serving 85% of their sentence because use of a firearm would be considered use, attempted use, or threatened use of force. ) The bill makes someone convicted of 1^st degree aggravated sexual assault ineligible for parole.

The bill deletes a requirement that the Board of Parole report monthly to OPM and the Appropriations, Judiciary, and Public Safety committees on the number of inmates eligible for parole who completed 75% of their sentence in the preceding month and were not approved for parole.

DOC assigns inmates to facilities and programs on the basis of a classification system. Classification is the ongoing process of collecting and evaluating information about each inmate to determine the inmate’s risk and need for appropriate confinement, treatment, programs, and employment assignment, whether in a facility or the community.

DOC tracks an individual throughout the term of his confinement. The system provides for scheduled reviews for security and custody changes and transfers among facilities and programs. Generally, DOC conducts regular reviews every six months and reviews due to new information. Other reviews include community release program placement reviews, overall level reduction reviews, and reviews due to disciplinary behavior.

DOC classifies an inmate each time he is newly admitted to the department. Seven factors determine the overall risk level:

DOC assigns each factor a rating. One is the lowest and five is the highest risk. After independently rating each factor, DOC establishes an overall risk level. The highest rating assigned to any of the seven factors determines the inmate’s overall risk level. Thus, if an inmate scores two on six of the factors and five on one factor, his overall rating is five.

The bill changes the eligibility for release on parole without a parole hearing to include all inmates subject to the 50% rule and exclude all others. By law, under this procedure, a board employee must review the inmate’s case and recommend parole and at least two board members must approve it. The bill changes eligibility by:

The crimes are: manslaughter in the 1^st degree; manslaughter in the 1^st degree with a firearm; manslaughter in the 2^nd degree; manslaughter in the 2^nd degree with a firearm; manslaughter in the 2^nd degree with a motor vehicle; misconduct with a motor vehicle; criminally negligent homicide; 1^st degree assault; 1^st degree assault of an elderly, blind, disabled, pregnant, or mentally retarded person; 1^st degree sexual assault; 1^st degree aggravated sexual assault; sexual assault in spousal or cohabiting relationship; kidnapping in the 1^st degree; kidnapping in the 1^st degree with a firearm; 1^st degree robbery; and employing a minor in an obscene performance.

The bill also allows the board’s chairman to require a parole hearing if it is necessary. As under current law, a hearing must be held at a victim’s request.

As under current law, a person with six months or less left in his sentence who agrees to certain conditions under a separate parole eligibility statute can use this procedure.

By law, when a person leaves prison and serves a period of special parole, the person is transferred from DOC custody to the jurisdiction of the Parole Board chairman. The bill provides that DOC is responsible for supervising the person during the special parole period.

Under the bill, when a parole officer determines that someone on special parole violated the conditions of his special parole, the board must hold a hearing on the charge without unnecessary delay. The parolee must be told of the manner of the alleged violation and be advised of his due process rights.

Once a violation is established, the bill authorizes the board to (1) continue the special parole, (2) modify or enlarge the conditions of special parole, or (3) revoke the sentence of special parole.

The bill requires the chairman to issue an order to commit the person to DOC custody when the board revokes his special parole. The period of commitment cannot exceed the unexpired portion of the special parole and the board can allow the person to be released again on special parole without a court order at any time.

The bill requires a board employee to conduct all parole revocation and rescission hearings. The bill requires, after a hearing, a board employee to recommend and at least two members of a panel to approve, revoking or rescinding parole for a person:

released on parole under the bill’s new provisions for parole of certain inmates (a) who are eligible for parole after serving 50% of their sentences and are released to parole after serving 75% of their sentences or (b) who are eligible for parole after serving 85% of their sentences and are released to parole when they reach the 85% mark (see section 6).

The bill requires the board chairman to sign an order to commit a person on special parole to a correctional institution.

The bill allows a paroled inmate returned to DOC custody to be placed in any correctional institution and not just the one he was paroled from. This also applies to someone on special parole.

The bill allows the board chairman to transfer certain inmates to a public or private nonprofit halfway house, group home, or mental health facility, or an approved community or private residence. This applies to inmates who are:

Someone released under this provision is transferred to the board’s custody but DOC remains responsible for supervising the person. The person may be returned to DOC custody at any time.

The bill allows the DOC commissioner to release people charged with certain crimes who are committed by the court to DOC to a DOC approved residence. This provision applies to people charged only with a misdemeanor or most class D felonies. It does not apply to the following class D felonies: 2^nd degree assault with a firearm; 2^nd degree assault of an elderly, blind, disabled, pregnant, or mentally retarded person (with or without a firearm); 2^nd degree assault with a motor vehicle; 3^rd degree sexual assault; 4^th degree sexual assault when the victim is under age 16; or 1^st degree stalking. The commissioner cannot exercise this authority if the court orders otherwise.

The bill allows the commissioner to impose conditions on the person’s release including, but not limited to, participating in a substance abuse treatment program, electronic monitoring, or use of any other monitoring technology or services. DOC retains jurisdiction and supervision of the person and can return him to prison for violating the conditions.

The law authorizes the DOC commissioner to enter contracts with government or private vendors to supervise up to 500 inmates out-of-state and, during the fiscal years ending June 30, 2005, to enter contracts with government or private vendors to supervise up to an additional 2,000 inmates out-of-state. The law also authorizes the commissioner to enter a contract for some or all of the additional 2,000 inmates with the Virginia Department of Corrections (which has an existing contract to supervise 500 inmates) without following the competitive bidding or negotiation requirements.

The bill requires the commissioner to submit contracts for the additional 2,000 inmates to the Appropriations and Judiciary committees for review and comment before entering the contract.

The bill changes the credit that a person receives for time spent in prison for a crime when he is held in prison only for payment of a fine. The bill changes the credit from $ 50 a day to a rate equal to the average daily cost of incarceration, as determined by the DOC commissioner. By law, the person is released when the amount of the credit equals the amount of the fine.

The bill changes the credit that a person receives for time spent in pre-sentence confinement (confinement by order or because he was denied or could not obtain bail) toward payment of a fine imposed after conviction. The bill changes the credit from $ 50 per day to a rate equal to the average daily cost of incarceration, as determined by the DOC commissioner.

The bill adds the Mental Health and Addiction Services commissioner and Board of Parole chairman, or their designees, to the membership of the Commission on Prison and Jail Overcrowding. The bill also allows the DOC and Public Safety commissioners to designate someone to serve in their place on the commission.

As under current law, the commission also consists of the chief court administrator (or his designee), chief state’s attorney (or his designee), chief public defender (or his designee), Court Support Services executive director or another designee of the chief court administrator, and the

following gubernatorial appointments: three government officials, a police chief, two people representing offender and victim services in the private community, and two members of the public.

The commission (1) develops and recommends policies to prevent prison overcrowding, (2) examines the impact of statutes and administrative policies on overcrowding and recommends legislation, and (3) annually prepares and distributes a comprehensive state criminal justice plan for preventing overcrowding.

By law, when a beneficiary of aid under the state supplement program, medical assistance program, aid to families with dependent children program, temporary family assistance program, or state administered general assistance program receives an inheritance, 50% of the assets payable to the beneficiary up to the amount of the assistance paid is assignable to the state.

The bill also gives the state a lien on the assets. As with assignments, the bill requires the probate court to accept notice of the lien if the Department of Administrative Services commissioner files it with the court before distributing the inheritance and the court distributes assets accordingly.

By law, compensation rates are set for services performed by inmates for the state. The money inmates earn is placed in accounts and paid to them on discharge unless the prison warden or administrator pays it for one of nine prioritized purposes. The bill changes the eighth priority from paying the inmate’s costs of board as determined by the DOC commissioner to the inmate’s cost of incarceration as determined by the statutes and regulations.

The law gives the state a claim for the costs of an inmate’s incarceration on the inmate’s estate, inheritance, and proceeds won in a lawsuit.

The bill gives the state a claim against any property owned by an inmate except:

But the state’s claim does apply to lottery and pari-mutuel winnings after the person’s release from prison; the inmate’s estate, inheritance, and proceeds won in a law suit after his release from prison; and certain federal, state, or municipal pension, annuity, insurance contracts, and similar items that are for government employee retirement benefits (subject to the rights of an alternate payee under a qualified domestic relations order).

The bill authorizes the attorney general to bring an action to enforce the claim in superior court in the Hartford judicial district at the DOC commissioner’s request. The action must be brought within two years of the inmate’s release from prison or within two years of his death if he dies while in DOC custody. This restriction does not apply to property that is fraudulently concealed.

EFFECTIVE DATE: Upon passage and applicable to actions and proceedings pending or commencing on or after that date.

The law gives the state a lien against the estate, lawsuit proceeds, and inheritance of someone obligated to pay the state for his costs of incarceration. The bill limits the state’s claim under these provisions to (1) the estate of someone who dies within 20 years of his release from incarceration, (2) law suits brought within 20 years of the person’s release from incarceration, and (3) inheritance received within 20 years of his release from incarceration.

By law, DOC can allow inmates to participate in a labor program with private industry and work-release and education-release programs. Any compensation inmates earn must be paid to DOC and put into an account for the inmate. The money can be used for one of eight prioritized purposes. The bill changes the eighth priority from paying the inmate’s costs of board as determined by the DOC commissioner to the inmate’s cost of incarceration as determined by the statutes and regulations. Similarly, it requires a self-employed inmate to pay the costs of incarceration rather than the costs of his board.

SECTION 21—GOVERNMENT EMPLOYEE RETIREMENT BENEFITS AND COSTS OF INCARCERATION

The law allows the state to recover the costs of incarceration from certain federal, state, or municipal pension, annuity, insurance contracts, and similar items that are for government employee retirement benefits (this is subject to the rights of an alternate payee under a qualified domestic relations order). The bill specifies that the state acts under the statute and the regulations adopted under it.

The bill allows the court to depart from a required mandatory minimum sentence if the defendant proves good cause, for the following crimes:

1. arson murder (penalty-60 years) (53a-54d);

2. 2^nd degree larceny (m. m. 2 years if property is "taken" from elderly, blind, disabled, pregnant, or mentally retarded victim, see 53a-60b) (53a-123);

3. 1^st degree hindering prosecution (m. m. five years) (53a-165aa);

4. contamination of public water or food for terrorism (m. m. five years) (53a-303);

5. selling or transporting an assault weapon (m. m. 2 years, 6 years if sale is to a minor) (53-202b);

6. subsequent conviction for increasing speed in attempt to allude a police officer after being signaled to stop if both convictions involve death or serious physical injury (m. m one year) (14-223(b));

7. illegal sale or transfer of handgun to minor (m. m. one year) (29-34);

8. 2^nd degree assault with a firearm (m. m. one year) (53a-60a);

9. 2^nd degree assault or larceny of elderly, blind, disabled, pregnant, or mentally retarded person (m. m. two years) (53a-60b);

10. 2^nd degree assault of elderly, blind, disabled, pregnant, or mentally retarded person with a firearm (m. m. three years) (53a-60c);

11. 3^rd degree burglary with a firearm (m. m. one year) (53a-103a);

12. criminal use of a firearm (m. m. five years) (53a-216);

13. criminal possession of a firearm or electronic defense weapon (m. m. two years) (53a-217);

14. possession of an assault weapon (m. m. 1 year) (53-202c);

15. 3^rd degree assault with a deadly weapon (m. m. one year) (53a-61);

16. 3^rd degree assault of elderly, blind, disabled, pregnant, or mentally retarded person (m. m. one year) (53a-61a);

17. driving during license suspension for DWI or DWI related offenses (m. m. 30 days unless mitigating circumstance) (14-215(c));

18. first DWI conviction (48 hour m. m. if not given community service) (14-227a(g));

19. subsequent DWI convictions (m. m. 120 days and one year) (14-227a(g));

20. sale of drugs to minor (m. m. two years) (21a-278a(a));

21. using person under 18 to sell drugs (m. m. three years) (21a-278a(c));

22. carrying handgun without a permit (m. m. one year if no mitigating circumstances) (29-37(b)); and

23. persistent felony offender (m. m. three years) (53a-40(m)).

The bill requires the court to state in open court the reasons for the sentence imposed and for departing from the mandatory minimum.

The bill changes the provisions in current law for departing from a mandatory minimum for certain drug felonies to match the bill’s rules described above. This applies to the crimes of:

The bill eliminates the requirements in current law that the court find, in order to make a departure from the mandatory minimum, that no one was hurt during the crime and the defendant (1) did not use or attempt or threaten to use physical force; (2) was unarmed; and (3) did not use, threaten to use, or suggest that he had a deadly weapon (such as a gun or knife) or other instrument that could cause death or serious injury. The bill also eliminates the restriction that allowed a defendant to receive a departure from a mandatory minimum only once.

The law authorizes courts to order offenders who are drug or alcohol dependent into treatment in lieu of prosecution or incarceration (CGS § 17a-692 to 17a-701). Under current law, anyone who was previously ordered treated under this program or under earlier versions of this

program is not eligible. The bill instead makes someone ineligible if they twice used one of these programs. As under current law, the court can waive the eligibility rules.

By law, the pretrial diversion aspect of this program covers all drug sale and possession crimes. A person charged with driving under the influence; assault in the second degree with a motor vehicle; or a class A, B, or C felony is not eligible for suspended prosecution and treatment.

The bill makes the penalty for selling or possessing with intent to sell, one ounce of cocaine in a free-base form (crack) the same as one ounce of powder cocaine. Under current law, one-half gram of cocaine in a free-base form is treated the same as an ounce of cocaine in powder form. The penalty is five to 20 years in prison with a possible life term. A mandatory minimum five year term applies but the court can suspend the mandatory minimum if the offender at the time of the offense (1) was under age 18 or (2) had a significantly impaired mental capacity.

The bill gives a child arrested and held in certain facilities before disposition of his juvenile matter, credit toward his period of probation (including any extensions) for each day spent in the facility if he is later sentenced to probation after conviction as a delinquent in Superior Court. This applies to time spent in a detention center, alternative detention center, Long Lane School for Girls, Connecticut Juvenile Training School, police station, or courthouse lock-up.

The bill requires staff from the Legislative Program Review and Investigations Committee and Office of Fiscal Analysis to review the bill’s implementation and measure its effects. This includes, but is not limited to, studying the (1) effect on the prison population and (2) cost savings and the extent they are reinvested in improving community safety and ensuring successful transition of ex-offenders to the community.

The committee must report its findings to the Appropriations and Judiciary committees by January 1 of 2006 and 2008.

SECTION 27—PLANS TO REDUCE INCARCERATION FOR TECHNICAL VIOLATIONS OF CONDITIONS OF PROBATION AND PAROLE

The plans must include estimates of the cost of implementation. The Judicial Branch and Parole Board and DOC must submit their plans to the Appropriations and Judiciary committees by October 15, 2004 and, if they receive funding, implement the plan and report again to the committees by August 15, 2005.

The budget act (PA 03-1, June 30 Special Session) transfers $ 2,000,000 from the appropriation to DOC for Personal Services to DOC’s appropriation for Community Justice Centers during FY 04-05.

The bill requires DOC, by October 1, 2004, to issue a request for proposals for a community justice center in Hartford with at least 500 beds to be operated by a nonprofit corporation that (1) has experience in operating these facilities and (2) is exempt from federal taxation under Section 501(c)(3) of the Internal Revenue Code. Corporations submitting proposals must have an acceptable site for the center as of the due date for submitting proposals.

The bill requires the $ 1,180,000 appropriated to DOC for prison overcrowding this fiscal year to be spent as follows:

The bill allows the Board of Parole to grant an inmate a compassionate parole release if the inmate:

A person granted a release is subject to terms and conditions set by the board and is supervised by DOC.

The bill requires the Parole Board, Judicial Branch, and the departments of correction, mental health and addiction services, social services, and labor to collaborate to develop and implement a comprehensive reentry strategy. The strategy must

The bill requires DOC to report on the success of the reentry strategy to the Appropriations, Judiciary, and Public Safety committees by January 1, 2005 and annually thereafter. The bill requires the strategy’s success to be measured by the:

1. recidivism and community re-victimization rates;

2. number of inmates eligible for release on parole, transitional supervision, probation, or other release programs;

3. number of inmates who transition from incarceration to the community complying with a discharge plan;

4. prison bed capacity ratios;

5. adequacy of the network of community-based treatment, vocational, educational, supervision, and other services and programs; and

6. reinvestment of any savings from reducing the prison population into reentry and community-based services and programs.

The bill authorizes DOC to transfer an inmate on work or education release to an approved community or private residence if the person already participated satisfactorily in a residential program. The law allows DOC to transfer someone to a different correctional institution, public or private nonprofit halfway house, group home, or mental health

facility as part of this program. The bill deletes the requirement that the warden, superintendent, or facility head concur with DOC’s decision before transferring a person to that facility. As under current law, a transferred inmate remains under DOC jurisdiction.

The work and education release law allows DOC to arrange for continued employment of an inmate who is self-employed or regularly employed. DOC can also attempt to secure suitable employment or attendance at an educational institution. The prisoner’s employment must (1) not displace employed workers, involve skills or trades that have a surplus of labor in the locality, or impair existing contract and (2) have pay and employment conditions that are not less than those for similar work at the locality.

The bill increases, from 15 to 30 days, the length of time DOC can release an inmate on furlough to visit a dying relative, attend a relative’s funeral, get medical services otherwise unavailable, contact prospective employers, or for other compelling reasons consistent with rehabilitation.

By law, DOC must have a reasonable belief that the inmate will honor the trust, must specifically designate the place to be visited, and prescribe conditions. DOC has discretion to renew a furlough. By law, failure to return from a furlough is 1^st degree escape, a class C felony punishable by one to ten years in prison, a fine of up to $ 10,000, or both.

The bill repeals provisions on appointing members of the Board of Pardons, placing the board in DOC, requiring four out of the five members to vote in favor for a decision, giving the board authority to

compel the attendance of witnesses, giving the secretary the power to issue process to command DOC officials to bring prisoners before the board, and certain other board procedures.


March 15, 2004		2004-R-0323
PRISON OVERCROWDING PROPOSED SUBSTITUTE

By: Christopher Reinhart, Associate Attorney