CHAPTER ONE

Overview of Sentencing Reforms and Practices

Sentencing laws guide the punishment imposed by the state on a person for criminal behavior. The policies and procedures developed based on these laws, therefore, have a direct impact on the prison population.

In Connecticut and the nation, there have been trends in sentencing laws that resulted in specific reforms to attempt to achieve "truth in sentencing" and to get "tough on crime." These reforms began in 1981 with the adoption of a determinate sentencing structure that was intended to identify the "correct" or "fair" prison term for a certain type of crime. The most recent reform, enacted in 1995, attempted to define the portion of a prison term that must be served to satisfy the state's interest in punishment for criminal activity.

An unintended result of the sentencing reforms implemented over the past 20 years appears to be prison overcrowding. Overcrowding has occurred despite an expansion of capacity -- over 10,000 new prison beds have been added since 1989 -- and a steady decrease during the past 10 years in the state's crime rate.

This section provides an overview of the sentencing policies and practices in place in Connecticut since the 1970s. As Figure I-1 shows, these include indeterminate sentencing, which was in place until 1981, and the major sentencing reforms enacted since: determinate sentencing; mandatory minimums; and "truth in sentencing." Also discussed are the effect each type of reform has had on the prison population. Figure I-2 provides an overview of sentencing reform, policy changes, and the impact on sentence length and time-served requirements between 1980 and 2000.

Indeterminate Sentencing

Indeterminate sentencing was the sentencing model in Connecticut and nationally until 1981. Under an indeterminate sentence, a convicted offender received a sentence with a minimum and maximum term and was eligible for parole release after completing the minimum term less any "good time" credits earned while in prison. Since most inmates were paroled at their first eligibility date, the minimum term minus "good time" became the de facto sentence length.

By the late 1970s, indeterminate sentencing practices were viewed as inequitable and ineffective and both too harsh and too lenient. The principal criticism voiced by policymakers and criminal justice research was the absolute discretion of an indeterminate sentencing system. It was impossible to determine a "correct" or "fair" sentence for a type of crime. In 1979, the General Assembly established a Sentencing Commission to recommend sentencing policies and practices, including reviewing the option of developing sentencing guidelines (also called a sentencing grid or matrix).

At the same time sentence reform was being considered, Connecticut was beginning to experience the first significant increase in its incarcerated population. By 1980, the state had to focus for the first time on alleviating prison overcrowding. This was a result of various factors, including the onset of the nation's "war" on drugs, increased crime rates primarily as a result of a surge in the population in their crime-prone years (16 to 24), the public's demand for longer sentences, and a shortage of prison beds.

Determinate Sentencing

A determinate sentencing structure was the model enacted in 1981 upon the recommendation of the Sentencing Commission. The commission reported the goal of the new structure was to provide "just and consistent penalties based upon prior criminal record and the conviction offense," but to retain judicial discretion to consider a wide range of penalties within the statutorily defined limits in effect for each class of offense. The court then imposed a single (or fixed) term of imprisonment.

The role of the parole board, implicit in an indeterminate sentencing structure, was abolished under the new sentencing framework. Under a determinate sentence, there was no longer a need for a discretionary parole release. However, the parole board maintained its discretionary release authority for offenders serving indeterminate sentences -- those convicted and sentenced to crimes committed prior to July 1981.

The 1981 sentencing reform also reduced the amount of "good time" credits that could be earned for sentences over five years, thereby increasing the time served by about 20 percent. "Good time" was reduced from 15 days to 12 days per month of the sentence. (Appendix A contains a description of statutory "good time" credits available to certain sentenced inmates.) The General Assembly also began establishing mandatory minimum sentences for certain offenses and enacted the first in a series of persistent offender provisions, which allowed for enhanced penalties for repeat offenses of serious crimes.

National experience with a determinate sentencing structure resulted in sizeable increases in prison populations. At the time determinate sentencing was adopted in Connecticut, the incarcerated population was already at design capacity levels, and the correctional system could not accommodate an influx of inmates.

In 1984, the Sentencing Commission reported to the legislature the new determinate sentencing law was not producing its intended effects and had instead contributed to the growing prison and jail overcrowding problem. According to the commission, the percentage of inmates in prison for serious felonies remained constant, but the number (and percentage) of inmates confined for less serious, non-violent and even misdemeanor offenses increased significantly. The average sentence length for less serious felonies also dramatically increased.

Without the ability to balance the offender's criminal history and correctional needs by imposing a minimum term with the victim's and the public's demands for punishment by imposing a maximum term, the court was imposing sentences that were somewhat higher than the pervious customary minimums, thereby increasing time served. Overall, sentence lengths increased by about 25 percent. The total impact on the correctional system became clear when increased sentence lengths were multiplied by the thousands of offenders sentenced to prison each year.

The reduction in crediting "good time," another effect of the 1981sentencing reform, added to the overcrowding problem. Under the prior "good time" law, sentences were generally reduced by a third for an inmate's good behavior. After the law change, sentences were reduced by about 25 percent.

Emergency release to relieve overcrowding. The legislature enacted an emergency release provision in 1982 that authorized the Department of Correction to petition the court for the release of accused and sentenced inmates to relieve overcrowding. The law failed to address the problem. While DOC petitioned the court for the release of 200 inmates, only one inmate was discharged under the new program due to the court's reluctance to reduce sentences. Politically, declaring an prison overcrowding emergency was also not an option.

Supervised home release. A second legislative approach to the prison overcrowding problem was an early release program, called supervised home release (SHR), created in 1981. Through this program, discretionary release authority was shifted from the now defunct parole board to the correction department. The SHR program quickly became a mechanism for dealing with prison overcrowding, and eventually the legislative intent of the program and the overall criminal sentencing policy were undermined by the correction department's need to free prison beds for incoming inmates. Due to the lack of beds, most sentenced inmates were serving only about 10 percent of their court-imposed sentences before being released on SHR. Because of this, many offenders opted for prison sentences over community supervision, such as probation.

Amended emergency release provision. In 1984, an amended emergency release provision was adopted to allow DOC to declare an overcrowding emergency when the incarcerated population exceeded 110 percent of capacity for 30 consecutive days. It could then systematically release inmates based on specified criteria until the population fell below 100 percent of capacity. However, this policy also failed. Despite several years of sustained and severe prison overcrowding, an emergency was never declared and no inmates were released under this provision. Politically, an emergency release was still not an option and, therefore, the provision was not a viable release mechanism for the correction department.

Mandatory Minimum Sentences

During the late 1980s, changes to statutory mandatory minimum sentences were a significant sentencing reform. Mandatory minimums were established to ensure offenders convicted of certain offenses served a specified term in prison. The objective of these laws was to counter the reduction in sentences occurring under SHR release and the "good time" policies. Mandatory minimum sentences also bolstered a "tough on crime" image by imposing a required sentence for the specific types of crime drawing public attention and media scrutiny, particularly crimes involving violence, drugs, or weapons or against children and the elderly.

"Truth in Sentencing"

"Truth in sentencing" was the philosophy behind many of the sentencing reforms of the 1990s. The purpose of the reforms was to restore credibility to the criminal justice system by reducing the discrepancy between the court-imposed sentence and actual time served in prison, which had reached a low of about 10 percent of the court-imposed sentence. The reform also responded to the public's perception that "tougher" sentences reduce crime, especially violent crime. By restricting or eliminating provisions for early release or sentence reduction, "truth in sentencing" reforms require offenders serve more of their prison terms. These reforms, however, do not necessarily call for longer court-imposed sentences.

Time-served requirements. As the new "truth in sentencing" framework evolved, several other reforms were enacted. The cornerstone, however, was the establishment of three different statutory time-served requirements. First, a 50 percent time-served standard for early release eligibility was phased-in for all sentenced inmates -- meaning all inmates had to serve at least half of their sentence to be eligible for release to parole or any DOC community supervision program. Initially set at 25 percent, the standard was expanded to 40 and then 50 percent.

Second, all offenders who committed a crime on or after October 1, 1994, are required to serve the full term of their court-imposed sentences either in prison or on parole. This was a significant change to the sentencing laws and established, for the first time, a 100 percent time-served standard.

Third, in 1994, the United States Congress authorized funding for additional state prisons and jails through the Violent Crime Control and Law Enforcement Act. To be eligible for funding, a state must require serious, violent offenders to serve at least 85 percent of their sentence prior to release. Connecticut adopted the sentencing standard in 1995, establishing a third time-served requirement by mandating serious, violent offenders serve 85 percent of their sentence to be eligible for parole.

"Good time". The new laws were silent with respect to the awarding of "good time" credits, which were not repealed. Although there is no specific record of intent, the objective of the 100 percent time-served provision was to allow "good time" credits to continue to reduce the time an offender was incarcerated, but to require that time be served -- or paid back to the state -- on "mandatory" parole after discharge from prison. (See Legislative Program Review and Investigations Committee report on Board of Parole and Parole Services, January 1993.)

A 1994 attorney general opinion, however, interpreted the new law as eliminating the effect of "good time" on reducing a sentence. It stated the legislature intended to eliminate "good time." The attorney general's opinion was upheld by the Connecticut Supreme Court in 1999¹. The "good time" laws now apply only to those inmates convicted of a crime committed prior to October 1994. The effect of that ruling is an inmate must serve between 50 and 85 percent of their court-imposed sentence to be eligible for any early release program and 100 percent of their sentence in custody or under supervision.

Other Developments in the 1990s

In addition to sentencing reform, there were a number of major initiatives undertaken during the 1990s that had an impact on prison overcrowding.

Supervised home release. Problems with the administration of supervised home release led the legislature to eliminate the program in 1990. It was phased-out over a three-year period ending in July 1993, but DOC retained discretionary release authority over inmates serving two years or less. Currently, the department administers the transitional supervision (TS) program for that purpose.

Parole. Persistent prison overcrowding -- routinely at 110 percent of capacity -- required the re-institution of parole in 1990, for all inmates sentenced to more than two years. The parole board was given discretionary release jurisdiction over determinate sentences and, after the end of SHR, became the primary mechanism for releasing inmates from prison into the community. While controlling prison overcrowding is not traditionally part of the board's mission, it was a major factor in re-instituting parole.

"Special parole" was created as a sentencing option, allowing the court to order a mandatory period of post-release parole supervision for any sentence greater than two years. Another parole release option, called extended supervision parole (ESP), was also established. ESP allows all offenders who have not been paroled by the board at eligibility (either 50 or 85 percent), to be released on parole if they have six months or less to serve. Certain violent offenders are automatically released after they have served at least 95 percent of their sentence. The inmate must agree to be supervised for one year, which is more time than they otherwise would have served in prison to complete their sentence.

Omnibus crime act. Also during the mid-1990s, the legislature enacted a series of anti-crime provisions, which increased maximum and mandatory minimum sentences, especially for offenses involving or against children and violent or sexual offenses, limited offender eligibility for alternative sentence options and programs, expanded persistent offender statutes, and toughened other criminal statutes. In addition, statutory prison capacity levels and the prison overcrowding emergency release laws were repealed. "Zero-tolerance" drug supervision programs were established. A number of changes were made to restrict eligibility for alternative sentencing programs for sexual offenses and offenses involved the "use, attempted use, or threatened use" of physical force.

Criminal Justice Policy

Connecticut, like all states, has an overriding interest in protecting its citizens and their property from crime. At the same time, the state is obligated to provide fair, consistent, and affordable judgment, punishment, and rehabilitation of criminal offenders. Under current law, however, no clear policy statement guides the overall efforts of the state to ensure public safety and to deter and justly punish criminals. The state's criminal justice policy instead must be pieced together from a variety of statutory mandates given to state agencies and the judicial branch, federal requirements, statutory guidelines for criminal sentencing, case law, and the record of legislative intent.

The policy established through these many sources appears to be a comprehensive system of graduated sanctions. It's based on criminal justice research that recognizes, in many cases, the public's interest and the criminal offenders' rehabilitation are better served by supervision, treatment, and/or education rather than long prison sentences. Incarceration, the most severe sanction in the system, is reserved for serious and violent offenders, habitual criminals, and offenders who have previously failed at lesser sanctions. The state policy also gives criminal justice agencies -- state and local police, state's attorneys and public defenders, courts and judicial support services such as bail and adult probation, the correction department, and the parole board -- considerable discretion in administering justice.

Over the past five years, however, the legislature has increasingly supported a more punitive policy that requires longer sentences and restricts the use of graduated sanctions for certain offenders. The shift is in response to the widespread "tough on crime" attitude of the public and the media, which is fueled by the perception of increasing levels of violence.

The development and implementation of criminal justice policy are also heavily influenced by advocacy groups and high profile incidents. The increasing role of the victim in policy development and in the actual criminal justice process, through victim rights legislation and advocacy groups, often times highlights only the most heinous crimes and further increases the public's demand for "toughness." The media, public, and legislative and executive branch officials frequently demand policy or procedural changes in response to a single, high profile incident that, in many cases, is not representative of the system or a majority of the offenders it processes.

Criminal justice agencies have responded to the "tough on crime" message by further narrowing their own discretionary authority and "toughening" administrative policies and procedures for sentencing, minimum time-served standards, restrictions on early release options and diversion and treatment programs, reduced rehabilitation, treatment, and educational programming in prisons, and increased prison capacity. Many of the "tough on crime" initiatives were intended to increase the severity of the punishment of only the most serious and violent offender, but have been expanded to include less serious and non-violent offenders. The system of graduated sanctions established by state policy is overridden by the criminal justice system's effort to be "tough" by incapacitating offenders for lengthy periods of time.

In addition, terms such as "serious" and "violent" have not been defined in state law. Other language defining the types of crimes or offenders to be included in "tough on crime" initiatives is overly broad, such as "the use of, threatened use of, or attempted use of physical force" and "zero-tolerance." Criminal justice agencies are broadly interpreting the legislative intent of laws dealing with serious and violent offenders. As a result, while the legislative intent is to focus on serious violence, in practice the policies have led to many other offenders also being dealt with more harshly.

There are, therefore, conflicting criminal justice polices and vague statutes. The result is a criminal justice system that, absent clear and consistent objectives, takes the more conservative and least controversial approach to implementing the state's crime policy.

Criminal Sentencing Laws

The key to the implementation of overall crime policy is the state's criminal sentencing laws, contained in the penal code, which govern the type and length of punishment for convicted offenders. As noted above, state law has established a system of graduated sanctions that includes:

• diversionary programs for first time, young, addicted, mentally ill, or certain other types of offenders imposed in lieu of a criminal sentence (i.e., accelerated rehabilitation, youthful offender, pre-trial drug education program, and family violence education program);
• alternative sanction programs aimed at diverting certain offenders from prison who would have otherwise been sent there by the court (called "jail-bound" offenders);
• probation;
• prison; and
• parole.

Types of sentences. The criminal court must dispose of all criminal cases by: (1) dismissal or nolle² of the charges; (2) ordering participation in a pre-trial diversionary program and, upon successful completion by the offender, dismissing the charges; or (3) sentencing the offender who is found or pleads guilty. Within the system of graduated sanctions, by law the court may impose a sentence of a:

· term of imprisonment -- called a "flat" sentence;

· fine;

· term of imprisonment and fine;

· term of imprisonment with all or part suspended followed by a period of probation or conditional discharge plus a possible fine -- called a "split" sentence;

· unconditional discharge³; and

· term of imprisonment of more than two years followed by a period of special parole.

All sentences are imposed (or ordered) by the court. Figure I-3 outlines the sentencing options available to the court. As shown, the court can incarcerate a convicted offender or impose an alternative, community-based penalty. The court may also divert an offender from the penalty phase of the criminal justice process by ordering treatment, education, or participation in community service or other program. The sentences reflect the court's application of the state's penal code. Appendix B provides a detailed overview of the types of sentences and diversionary sanctions imposed by the court, information on eligibility and exclusionary criteria for each sentence and diversionary program, and the criminal justice agency responsible for administering the sentence.

¹ Valez v Commissioner of Correction 738 A.2d 604, 250 Conn. 536 (1999)

² Nolle prosequi (nolle) is a formal court motion by the state's attorney stating the case will not be prosecuted any further.

³ The court may impose a sentence of unconditional discharge for any crime other than a class A felony if the offender's release is not necessary for public protection or inconsistent with the ends of justice and the offender is found to be in need of guidance, treatment, training, or assistance but does not require supervision.

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