Appendix C

Criminal Justice System Decision Points Affecting Custody

The Department of Correction is responsible for managing Connecticut's prison system, but almost all criminal justice agencies have some discretionary authority to place an offender in custody or release him or her to the community. An understanding of the steps within the criminal process at which custody decisions are made and the dispositions available at each step are essential to identifying workable solutions to prison overcrowding.

A detailed discussion of each criminal justice agency will not be included. The focus is on the agency's discretionary authority to detain an offender and the point in the process at which the agency makes that decision, and not the specific operations of the agency. However, Table C-1 lists the key agencies in the state criminal justice system and summarizes their roles.

Criminal Justice Process

Program review committee staff has identified five main steps within the criminal justice process at which a custodial decision is made: arrest, bond setting, sentencing, community release, and parole. As shown in Figure C-1, most steps are sequential, but some can be repeated. Information about the agency with decision-making authority, the scope of that authority, and the custody or release options available for each step are presented below.

Arrest. State and local police are responsible for arresting criminal offenders. The first custody decision at this point is whether to make an arrest or issue a summons to appear in court, which allows the offender to remain at liberty. The police also may take no action.

If the police make a custodial arrest the offender is detained in local lock-up facilities to be processed and charged by police. The police set a surety (or financial) bond -- also called bail -- in order that the accused offender may secure his or her release from custody pending disposition of the charges by the court. There are no statewide guidelines governing the setting of bond by police; each department establishes its own standards and criteria. Upon posting the bond, an offender is released from custody and, in order to remain in the community, must appear at every court appearance until the disposition of the charges against him or her.

Techniques and policies such as community policing, "zero-tolerance," and targeting specific locations or types of offenses have an impact on the number of arrests and the types of criminal charges. Decisions surrounding arrest practices are critical determinants of the jail population. State and local police discretion dominates the initial admission decision into the criminal justice system.

Bond. A defendant not released on bond by police is referred to the judicial branch for bond setting. There are two points at which bail may be set and posted. First, judicial bail staff -- formerly known as bail commissioners -- interview offenders detained in local police lock-up facilities and set bond.¹ The bail staff may change the initial bond set by the police. Typically the bond amount is lowered because the offender cannot post the initial amount or meet the conditions imposed by police. Upon posting of the bond, the defendant is released from lock-up pending disposition of the charges.

Because of resource limitations, bail staff do not interview all arrested offenders. They focus mainly on the busiest and largest police departments. A defendant unable to post the bond set by the police or bail staff or who was not interviewed by the bail staff while in a local lock-up remains in the custody of the arresting police department until his or her arraignment hearing. An arraignment is the first court appearance for an accused offender. It has two purposes: (1) the defendant enters a plea (guilty or not guilty) against the pending formal charges; and (2) the court sets bond, based upon a recommendation by the bail staff, who interview those defendants not previously released on bond. Defendants posting bond are released from custody. Those unable to post bond are transferred to the custody of the Department of Correction and detained in a correctional center (jail) pending disposition of the charges or the posting of bond.

In 1997, the judicial branch established the bail re-interview project to screen pre-trial defendants in jail to reassess the possibility of release on bond. Defendants typically remain in jail because they cannot raise the cash necessary to post bond or cannot meet the nonfinancial release conditions set by the court. Bail staff re-interview primarily offenders whose history of violent or sexual offenses or mental health problems would make them ineligible for placement in a program. The bail staff present the court with an alternative plan, which usually includes substance abuse treatment or another treatment or service program that will ensure the defendant's appearance in court. The court may modify the original bond order and release the defendant on a bond of a written promise to appear on the condition that he or she comply with the conditions of release plan.

Offenders charged with certain crimes such as murder, larceny first degree, assault first degree, and sexual assault second and third degrees with a firearm are not eligible to be released on bond and must remain in the custody of the Department of Correction until the disposition of the charges. Convicted offenders may be released on bond while awaiting sentencing or appealing a conviction. However, defendants convicted of murder cannot be released on bond. The court may issue an arrest warrant for any defendant released on bond who fails to appear in court. It may also modify a bond or release conditions after a hearing.

All conditions of release are monitored by bail staff, but the offenders are not supervised. The defendant's compliance is reported to the court at all appearances, and bond conditions may be modified by the court, after a hearing, for failure to comply.

For each type of bond, there is a process for the court to recover the bond amount if the defendant fails to appear in court. Upon disposition of the charges, the defendant or professional bail bondsman is released from the bond.

The Table C-2 shows the four types of bonds set out in state law. Special or non-financial conditions of release, such as electronic monitoring, participation in a program or treatment, reporting requirements, substance abuse or mental health evaluations, and no contact with a victim or witness, may be imposed by the police or the court as part of a bond. No further criminal activity by the offender is also a standard condition of release.

Another type of bond that has been recently used by the court is "cash bail". It is not a statutorily authorized bond, but has developed as a practice is some courts as a way to ensure certain offenders are unable to secure release by posting bond. As its name implies, under a cash bail, the defendant is required to post the total amount of the bond in cash. Professional bail bondsmen cannot be used because they are unwilling to guarantee 100 percent of the bond. Typically, cash bail is set at a very high amount (i.e., $1 million) that, if not posted, requires the offender be transferred to the custody of the correction department pending disposition of the charges or until bond is posted.

Sentencing. All criminal charges before the court must be adjudicated. The charges may be dismissed by the court or the defendant found guilty or not guilty. Only a very small percentage (about 2 percent) of criminal cases actually progress to trial. The adult criminal court system relies heavily upon plea bargaining, the process of negotiation between the state's attorney (or prosecutor) and the defense counsel aimed at reaching an agreed upon disposition of the case. It is based on the prosecutor's authority to reduce the charges, dismiss or drop multiple charges, and make sentencing recommendations to the court.

Offenders whose charges are dismissed or who are found not guilty are released from custody and any further criminal proceeding against them for those charges. Offenders who are found or plead guilty proceed to the sentencing phase of the adjudication process.

As discussed in Appendix B, there are several types of sentencing options available to the court. However, it is only a sentence of a prison term that immediately affects the custody of a convicted offender. Only about 24 percent of the average daily population of convicted offenders is in prison. Most convicted offenders are under sentences or diversionary programs that place them in the community under a some form of supervision, with restrictions and conditions on their behavior. The possibility of being sent to prison is the punishment for failing to comply with the community release and supervision conditions. The court retains the authority, until the completion of the sentence, to impose a prison term.

Community release from prison. The Department of Correction administers court-imposed sentences of incarceration and assumes custody of sentenced offenders. The department determines the security and custody needs of the inmates and, to meet those needs, operates a system of prison facilities ranging from minimum to maximum security and a network of community-based residential and non-residential programs.

Convicted inmates must serve 100 percent of their court-imposed sentence either in the custody of the correction department or parole board. DOC cannot modify the length of the court's sentence, but can authorize the early release of certain inmates into the community to complete their sentences under supervision. DOC has discretionary release authority over inmates sentenced to two years or less and those who have already been voted to parole and have a scheduled parole release date. The department administers three types of community-based early release programs: transitional supervision (TS); community residence; and re-entry furlough.

Transitional supervision. The transitional supervision program² allows eligible inmates sentenced to two years or less to be released from prison after serving at least 50 percent of their sentence. The release is authorized by the warden of the facility where the inmate is housed.

Inmates who are convicted of certain crimes (e.g., driving while under the influence of alcohol or dugs) or have other criminal charges pending are not eligible for TS. An inmate who does enter the program must:

• comply with treatment or rehabilitative program requirements;
• remain free of disciplinary reports for specified periods of time;
• have no or low sex offender or mental health classification scores;
• have no charge of escape; and
• have an approved sponsor.

Correctional TS counselors who review and approve the release plan, also establish release conditions and supervise the inmates. Release conditions generally include a curfew, a requirement to be employed or enrolled in school or a training program, no further participation in criminal activity, compliance with a reporting schedule, and restrictions on visiting specific crime-prone areas or having contact with the victim of the crime for which the offender was incarcerated.

TS inmates are classified to determine their level of supervision:

• intensive: report to counselor a minimum of twice per week;
• regular: report a minimum of once per week; and
• minimum: report once every other week or monthly.

Community residence. The community residence program allows sentenced inmates who are within 18 months of discharge or who have been voted to parole (and have a parole release date) to be released from prison to an approved community residential program, generally a halfway house.

To be eligible for a community residence, an inmate must:

• be classified at security level 2 (minimum security);
• remain free of disciplinary reports for specified periods of time;
• have no charge of escape during the preceding year;
• have no community release failures within the preceding six months; and
• have no pending criminal charges or detainers, unless bond has been posted or pre-trial release criteria are met.

Re-entry furlough. A re-entry furlough allows an inmate to be released to an approved residence in the community -- typically a halfway house -- during the final portion of the sentence for the purpose of reintegration. A furlough may be granted to inmates who are within 15 days of their discharge from prison or parole release date.

Furlough eligibility criteria include:

• minimum security classification;
• no serious disciplinary infractions;
• a verified reason for the furlough, an approved residence, and a sponsor;
• served a minimum of 30 days or 40 percent of sentence and served all of mandatory minimum portion of sentence for driving while intoxicated;
• no prior furlough violation or escape; and
• no pending criminal charge for which bond has not been posted.

Inmates released on re-entry furlough or community release to halfway house inmates must comply with conditions such as a curfew, no criminal activity or use of alcohol or illegal drugs, remaining within a designated town and residing at an approved residence, returning to the correctional facility as per the order of DOC, submit to alcohol or drug testing, and abide by any other special conditions imposed. Failure to comply with release conditions may result in disciplinary action by DOC. Inmates who fail to return to prison at the end of the furlough are considered to have escaped and are referred for prosecution.

Parole. To be eligible for parole, an inmate is required to serve either 50 or 85 percent of their sentence. The parole board determines which time-served standard applies to each inmate. An inmate convicted of any one of the 33 "serious, violent" offenses identified by the board or who has two prior convictions for violence within the preceding 10 years is required to serve 85 percent of his or her sentence to be eligible for parole.

The Board of Parole developed in regulation the criteria used in determining whether an inmate must serve 85 percent of their sentence to be eligible for parole. The offenses include:

· manslaughter 1 (C.G.S. §53a-55);

· manslaughter 1 with firearm (§53a-55a);

· manslaughter 2 (§53a-56);

· manslaughter 2 with firearm (§53a-56a);

· manslaughter 2 with motor vehicle (§53a-56b);

· misconduct with motor vehicle (§53a-57);

· assault 1 (§53a-59);

· assault 1 on victim 60 years or older (§53a-59a);

· assault 2 (§53a-60);

· assault 2 with firearm (§53a-60a);

· assault 2 of victim 60 years or older (§53a-60b);

· assault 2 with firearm of victim 60 years or older (§53a-60c);

· sexual assault 1 (§53a-70);

· aggravated sexual assault 1 (§53a-70a);

· sexual assault in a spousal or cohabitating relationship (§53a-70b);

· sexual assault 3 with firearm (§53a-72b);

· kidnapping 1 (§53a-92);

· kidnapping 1 with firearm (§53a-92a);

· kidnapping 2 (§53a-94);

· kidnapping 2 with firearm (§53a-94a);

· unlawful restraint 1 (§53a-95);

· burglary 1 (§53a-101);

· burglary 2 with firearm (§53a-102a);

· burglary 3 with firearm (§53a-103a);

· arson 1 (§53a-111);

· arson 2 (§53a-112);

· robbery 1 (§53a-134);

· robbery 2 (§53a-135);

· robbery 3 (§53a-136);

· assault on policeman or fireman (§53a-167c);

· rioting in a correctional facility (§53a-179b);

· inciting a riot in a correctional facility (§53a-179c); and

· stalking 1 (§53a-181c).

Currently, only inmates convicted of capital felony or arson murder are ineligible for any parole program. Public Act 99-196 made two significant changes to parole eligibility criteria. First, prior to the change, inmates convicted of murder, including felony murder, or an offense committed with a firearm in, on, or within 1,500 feet of a school were ineligible for parole. Now, inmates convicted of those offenses are eligible for parole after they serve at least 95 percent of their sentence, or if they have six months or less remaining. To be released on parole, the inmate must agree to be supervised for one year rather than the remaining period of time of their sentence, even if it is less than one year. Second, inmates may be paroled by the board before serving the court-imposed mandatory minimum term of a sentence, if they are otherwise eligible.

Since 1993, the parole board has had discretionary release and supervision authority over all inmates sentenced to more than two years. The board conducts either a panel or administrative parole hearing, usually six months prior to the inmate's parole eligibility date. In general, an inmate is paroled if: (1) it appears from the available information, there is reasonable probability he or she can live in the community without violating the law; and (2) the release of the inmate is not incompatible with the "welfare of society."

If parole is granted, the board sets the actual date of release from prison, which may extend beyond the inmate's parole eligibility date requiring the inmate serve more than 50 or 85 percent of their sentence to be released. If parole is denied, the board can reconsider paroling the inmate at a later date or continue the decision to parole indefinitely, which may require the inmate to serve the remainder of his or her sentence in prison (called "maxing out"). When denying parole, the board has determined the inmate is not and will not be suitable for parole and that incarceration is the best possible situation. There is no appeal process for a parole denial.

Parole supervision. The goal of parole supervision is two-fold: (1) to successfully transition the inmate back into the community by reducing the likelihood he or she will re-offend; and (2) to protect the community. All inmates released from prison on parole are supervised by the board's parole officers. The officers are responsible for: meeting with parolees according to a set schedule; tracking compliance and adherence to the stipulations of release; and maintaining a working relationship with local and state police and program and treatment providers.

Parole supervision levels determine the frequency with which the parolee must report to the parole officer and the restrictions placed on the parolee. The levels are: intensive; maximum; medium; and minimum. The level of supervision may increase or decrease depending on the behavior of the parolee.

The board also established a special management unit (SMU) to supervise those parolees requiring ongoing intensive supervision or specialized treatment. The board generally refers to the SMU inmates: (1) convicted of sexual assault or sexually involved offenses; (2) on medical parole due to a serious or terminal illness; or (3) with a criminal history indicative of a need for specialized supervision. Parolees may also be referred to SMU at any point during supervision. They may be referred for new criminal arrests, failure to maintain contact with a parole officer, substance abuse relapse, significant gang affiliation, and mental health treatment needs.

Revocation. For the purposes of this study, a parole officer's main responsibility with respect to the custodial status of a parolee is the authority to remand (or arrest) a parolee back to prison for a violation. The violation may be technical in that the parolee failed to comply with a stipulation of release, or it may be for a new criminal offense.

The remand procedure requires the parole officer to take the parolee into custody and return him or her to the facility from which he or she was paroled. A probable cause hearing is held at the prison by a parole board staff member, who is not involved with the supervision of the parolee, to determine if there is sufficient evidence to continue incarceration. The hearing may be waived by the inmate.

If no probable cause if found, the inmate is released and continues parole. If probable cause is found, a revocation hearing is conducted by a three-member panel of the board. At this hearing, inmates are afforded due process rights, such as assistance of counsel, cross examination of witnesses and review of documents, and the ability to present witnesses. The principal behind these rights is that the parolee has a constitutionally protected liberty interest when his or her freedom is in jeopardy³.

The board may:

• revoke parole and subsequently reinstate parole (and may add new stipulations);
• require the inmate serve more time prior to a new parole hearing date;
• not revoke parole and release the inmate; or
• revoke parole and set no new parole hearing date.

Rescission. Once approved for parole, an inmate is under the jurisdiction of the parole board. The board retains the authority to cancel -- or rescind -- parole. The board may rescind parole when an inmate receives a disciplinary report from the prison, is involved in criminal activity prior to release, or the board receives information that directly affects its decision.

The rescission hearing process is similar to the revocation process. The board may:

• rescind and subsequently reinstate parole (and may add new stipulations);
• require the inmate to serve more time prior to a new hearing date;
• not rescind parole and allow its prior decision to stand; or
• rescind parole and set no new hearing date.

Special parole. Special parole allows for a period of mandatory parole supervision after a prison sentence of more than two years. The court may impose a fixed period of special parole, but the parole board, not the court, sets the conditions of release. Parolees who violate special parole are subject to serving a prison term equal to the unexpired period of special parole, provided the total amount of the sentence and special parole does not exceed the maximum statutory sentence for the crime.

Extended supervision parole. Extended supervision parole (ESP) allows an inmate who has been denied discretionary parole to apply for parole release within the last six months of his or her prison term. If granted ESP, the inmate must agree to supervision for one year. They are trading the last six months of their prison term for an extended period of community supervision.

If granted ESP, inmates are subject to the same supervision standards and stipulations as regular and special parole, including being returned to prison for a violation to complete the suspended portion of their prison term.

¹ The court must set a bond based on the "the first condition of release" that will "reasonably" assure the defendant's appearance in court.

² The TS program was established in 1994 after the phase-out of the Supervised Home Release (SHR) program.

³ Morrissey v Brewer and Gagnon v Scarpelli found that parolees and probationers are entitled to certain elements of due process during revocation hearings.

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