You asked for a summary of the governor's proposed bill “An Act Concerning Reform of the Criminal Justice System.” This report is based on language we received on January 10, 2008. Due to its draft nature, this report does not address technical and conforming changes that are likely to be included in the fully-drafted proposed bill.

SUMMARY

This bill:

1. mandates 60-year prison sentences for certain three-time offenders, permitting them to seek sentence reviews after 30 years (§ 10);

2. creates the new crime of aggravated burglary in the first degree and makes it a class A felony (§ 13);

3. expands the crime of burglary in the first degree and imposes a mandatory minimum five year prison term for some of the conduct (§ 12);

4. expands the crime of burglary in the second degree (§ 14);

5. increases the penalty for a second or subsequent offense of burglary in the second degree from a class C to a class B felony, and imposes a mandatory minimum three year sentence for any violation of this offense (§ 14);

6. increases the penalty for burglary in the third degree from a class D felony to a class C felony for a second conviction, and to a class B felony for a third or subsequent conviction (§ 15);

7. eliminates the crimes of burglary in the second or third degrees with a firearm but the conduct covered by these crimes is covered by other burglary crimes (§ 24).

The bill generally increases the penalty for a persistent dangerous felony offender, a persistent serious felony offender, and a persistent felony offender and makes it easier to apply these harsher penalties (§§ 18-23). The bill eliminates the requirement that the court conclude that the public interest will be served by extended incarceration in order to trigger these enhanced penalties. Instead it authorizes the enhanced penalties if the offender is found to be a persistent dangerous felony offender, a persistent serious felony offender, or a persistent felony offender based on his current conviction and his prior conviction or convictions.

The bill updates the crime victim notification law and adds notice requirements before plea bargains can be accepted (§§1-6). It also:

1. expands the Criminal Justice Policy Advisory Commission's responsibilities (§ 7),

2. establishes a prisoner reentry commission and a committee to study ways to create incentives for towns that allow community based offender programs to be located in them (§§ 9 & 11), and

3. directs the Criminal Justice Information System Governing Board to issue a request for proposals for a master criminal justice information systems plan (§ 8).

EFFECTIVE DATE: Upon passage

§§ 1-6 CRIME VICTIMS

Current law requires the Department of Correction to notify the Office of Victim Services (OVS) when an inmate is granted a specific type of furlough. It must give the notice when an inmate is allowed to serve an unspecified period of time reintegrating into the community immediately preceding his discharge or release on parole. OVS must notify, by certified mail, victims who have requested notice of an inmate's scheduled release. Victims are responsible for making sure that OVS has their current mailing address.

The bill extends these procedures to “reentry” furloughs. Although the bill does not define this term, presumably it is being used in place of the furlough description above. It specifically requires OVS to notify victims who have requested notice before an inmate is granted a furlough. It also requires victims requesting notification to provide their telephone numbers and allows OVS, the Department of Correction's Victim Services Unit, and the Board of Pardons and Paroles to share victim contact information (OVS and the Victim Services Unit can already do this).

The bill also permits victims' immediate family members to appear before the Board of Pardons and Paroles panel that is considering the perpetrator's parole eligibility. Under current law, immediate family members may do this only when the victim is dead. As under existing law, those who have the right to appear may choose to submit a written statement instead.

The bill also requires victims who have requested notification from either the OVS, Victim Services Unit, or Board of Pardons and Paroles to be notified before a plea bargain is accepted. But failure to reach a victim cannot block the acceptance of a plea bargain if the prosecutor made a good faith effort to provide the notice.

§ 7 CRIMINAL JUSTICE POLICY ADVISORY COMMISSION

The bill expands the responsibilities of the Criminal Justice Policy Advisory Commission, in some cases creating an overlap between its reporting functions and those of the Office of Policy and Management's (OPM) Criminal Justice Policy and Planning Division.

The commission, which has 16 members representing state and local governments, the Judicial Branch, prosecutors and public defenders, service providers, and the public, is chaired by the OPM undersecretary for criminal justice policy and planning. Its current responsibilities are: (1) developing and recommending policies to prevent prison overcrowding, (2) examining the impact of statutes and administrative policies on overcrowding and recommending legislation, (3) researching and gathering data and information on efforts to prevent overcrowding and making it available to criminal justice agencies and legislators, (4) advising the division's undersecretary on policies and procedures to promote more effective and cohesive criminal and juvenile justice systems and to develop and implement the offender re-entry strategy required by law, and (5) assisting the undersecretary in developing recommendations for mandated status reports and presentations to legislative committees on the re-entry strategy.

The bill adds the following responsibilities:

1. monitoring developments throughout the state's criminal justice system;

2. by February 15, 2009 and annually thereafter, reporting to the legislature and governor on (a) the state's re-entry strategy's effectiveness and outcomes, (b) the level of integration and coordination of the information technology systems criminal justice agencies use, and (c) other system-wide issues the commission identifies; and

3. by the same date, sponsoring annual, day-long reviews of the state's criminal justice system for the criminal justice community.

OPM's Criminal Justice Policy and Planning Division undersecretary must facilitate the reviews, which must include progress made during the prior year and challenges to be met.

Current law, unchanged by the bill, requires the policy and planning division to file annual reports on the success of the re-entry strategy with the Appropriations, Judiciary, and Public Safety committees each January 1^st. And the division must submit a report and make a presentation to the Judiciary and Appropriations committees annually by January 1^st about its activities, recommendations, and specific actions to promote an effective and cohesive criminal justice system. Beginning with the report and presentation due by January 1, 2008, the law requires that they include information on the reentry strategy's development and implementation.

The bill also establishes a separate Reentry Commission (see §11, below).

Prisoner Reentry Strategy

By law, the state's reentry strategy must (1) support victims' rights, (2) protect the public, and (3) promote successful transition from incarceration to the community. By law, the strategy must achieve this by:

1. maximizing any available period of community supervision for eligible and suitable offenders;

2. identifying and addressing the barriers to offenders' successful transition from incarceration to the community;

3. ensuring sufficient criminal justice resources to manage offender caseloads;

4. identifying community-based supervision, treatment, education, and other services and programs proven effective in reducing recidivism; and

5. creating employment initiatives for offenders though public and private services and partnerships by reinvesting savings from reducing the prison population.

§ 8 CRIMINAL JUSTICE INFORMATION SYSTEM GOVERNING BOARD

By law, the Criminal Justice Information System Governing Board is charged with overseeing the operations and administration of the state's offender-based tracking system and recommending legislation needed to implement, operate, and maintain the system.

The governing board is currently within OPM for administrative purposes only. Its members are the chief court administrator, who currently serves as chairperson; agency commissioners with law enforcement, homeland security, correction, and motor vehicle responsibilities; the Board of Pardons and Paroles chairperson; the OPM secretary; chief state's attorney and public defender; DOIT's chief information officer; the victim advocate; and Connecticut Police Chiefs Association president, or their designees.

The bill removes the (1) board from within OPM for administrative purposes and (2) chief court administrator as its chairperson. It directs the governor to appoint a chairperson from among the governing board's members.

The bill also directs the board, on or after February 1, 2008, to issue a Request for Proposals for the development of a master criminal justice information systems plan to provide integrated information technology services to all criminal justice agencies. The master information systems plan must include, at a minimum:

1. case and record management,

2. warrant tracking,

3. online booking,

4. the offender-based tracking system, and

5. updated legacy systems.

Criminal justice agencies and local police departments must be able to use the system to share access to criminal history record information, police reports, sentencing transcripts, and pre-sentence investigation reports. The system must accept electronic signatures throughout the criminal justice system.

Offender-based Tracking System

By law, the offender-based tracking system is an information system that allows criminal justice agencies to share criminal history record information and to access electronically maintained offender and case data involving felonies, misdemeanors, violations, certain motor vehicle violations and offenses, and infractions.

§ 9 COMMITTEE TO STUDY MUNICIPAL SITING INCENTIVES FOR COMMUNITY-BASED OFFENDER FACILITIES AND HOUSING

The bill establishes an 18-member committee to study how the state can effectively provide municipalities with incentives for allowing community-based facilities for offenders (such as halfway houses and transitional and supportive housing) to be located in their communities. The committee must report its findings and recommendations to the governor and legislature by January 1, 2009.

The committee is composed of the (1) Correction commissioner, (2) Judicial Branch's Court Support Services Division's executive director, (3) OPM's Criminal Justice Policy and Planning Division undersecretary, and (4) chairpersons and ranking members of the Judiciary and Planning and Development committees. Other members and their appointing authorities are shown below.

§ 10 LIFE IMPRISONMENT FOR CERTAIN 3-TIME OFFENDERS

The bill creates a new enhanced penalty law that requires the court to sentence someone to life in prison (statutorily defined as 60 years) without possibility of release if the person (1) is convicted of one of the following crimes and (2) has at least two convictions in any state or federal court for committing or attempting to commit one of these crimes, any predecessor crimes in this state or a crime in any state that has substantially the same essential elements as one of these crimes:

1. murder,

2. manslaughter,

3. arson,

4. kidnapping,

5. 1^st or 2^nd degree robbery,

6. robbery involving an occupied motor vehicle,

7. assault constituting a felony,

8. sexual assault constituting a felony,

9. 1^st or 2^nd degree burglary,

10. 1^st degree stalking, and

11. any felony involving the use of a deadly weapon.

The bill permits a person convicted of a third one of these crimes to avoid the life sentence by showing that he or she was pardoned for one of the earlier crimes on the ground of innocence.

Sentence Review

The bill permits offenders sentenced under its provisions to seek review of their sentences after they have served 30 years. To do so, they must file an application in the superior court for the judicial district in which they were convicted.

Under the bill, when a sentence review application is received, the court must review the applicant's complete criminal record, including sentencing transcripts, victim statements, and correctional records. It must hold a hearing and allow any victim or prosecutor to appear and make a statement on the record concerning whether to modify the offender's sentence. Victims and prosecutors can submit written statements instead, and the court must make them part of the hearing record.

After reviewing the records and holding the hearing, the court may (1) reduce the sentence by an amount it deems appropriate, (2) modify the sentence to a period of special parole or probation, or (3) leave the sentence unchanged. The court's decision is final and must include the reasons on which it is based. Applicants whose requests for sentence reductions or modifications are denied may re-apply after five years.

It appears that the bill may make some offenders sentenced under its provisions eligible for release earlier than they would be under current law. For example, an offender convicted of murder as a “third strike” could be released sooner than a first or second offender sentenced to life for murder. Offenders serving life sentences for murder are currently (1) ineligible for parole consideration and (2) unable to ask the court to modify or reduce their sentences without the prosecutor's agreement. Under the bill, they could apply for a sentence review after serving 30 years and need not obtain the prosecutor's consent to do so.

§ 11 REENTRY COMMISSION

The bill establishes a re-entry commission composed of: (1) the OPM undersecretary of the Criminal Justice Policy and Planning Division, who serves as chairperson; (2) the Correction commissioner; (3) the Board of Pardons and Paroles' chairperson; (4) the Judicial Branch's Court Support Services Division's executive director; and (5) three community-based re-entry service providers appointed by the governor.

Under the bill, the commission must:

1. advise the OPM planning division on the development and implementation of the statutorily-mandated comprehensive reentry strategy;

2. identify specific needs for reentry services in geographic areas throughout the state;

3. identify institution- and community-based programs and services that effectively address offender needs and reduce recidivism, including education and training; employment preparation and job banks; transitional health care; and family support, substance abuse, domestic violence, and sex offender services;

4. develop a best practices guide for re-entry services;

5. develop and annually update a plan to ensure availability of re-entry services that may include the establishment of community re-entry centers; and

6. work cooperatively with the Criminal Justice Policy Advisory Commission to develop policies to prevent prison and jail overcrowding.

§§ 12-17, 24 BURGLARY CRIMES

The bill makes a number of changes to the burglary statutes. It creates the new crime of aggravated burglary in the first degree and expands the crimes and increase penalties in other burglary statutes.

All burglaries require a person to enter or remain unlawfully in a building or dwelling with intent to commit a crime. The law defines a “building,” in addition to its ordinary meaning, as including any watercraft, aircraft, trailer, sleeping car, railroad car, or other structure or vehicle, or any building with a valid certificate of occupancy. A “dwelling” is a building that is usually occupied by a person lodging at night, whether or not a person is actually present. Thus, the term “building” is much broader than the term “dwelling,” but a dwelling is within the definition of a building.

Table 1 below shows the changes to the burglary statutes. It shows changes to the conduct required to commit the different degrees of burglary and changes to the penalties.

**It is unclear but the bill appears to retain a portion of the crime of burglary in the second degree where a person commits the crime by entering or remaining unlawfully in a dwelling with intent to commit a crime while eliminating the requirement that a person other than a participant in the crime be actually present in the dwelling. For this conduct, the penalty would remain a C felony for a first offense but the bill would make it a B felony for subsequent offenses and impose a three year mandatory minimum for all offenses.

Repealed—Burglary in the Second Degree with a Firearm (§ 24)

The bill eliminates the crime of burglary in the second degree with a firearm but the conduct it covers remains punishable by the same or higher penalties under the bill.

Under current law, a person is guilty of this crime when he or she:

1. enters or remains unlawfully with intent to commit a crime in (a) a dwelling at night or (b) an occupied dwelling and

2. in committing the offense uses a firearm, is armed with and threatens the use of a firearm, displays, or represents by words or conduct that he or she possesses a firearm.

Parole Eligibility (§ 16)

The bill makes someone convicted of burglary in the first degree or aggravated burglary in the first degree ineligible for parole until he or she has served at least 85% of the sentence imposed. The law imposes this same 85% requirement on people convicted of an offense where the underlying facts and circumstances of the offense involve the use, attempted use, or threatened use of physical force against another person.

§§ 18-19 PERSISTENT DANGEROUS FELONY OFFENDERS

Classification

Current law, under certain circumstances, authorizes courts to sentence people classified as a persistent dangerous felony offender to a longer prison term than the offense they are convicted of allows. To be classified as a persistent dangerous felony offender an offender has to (1) stand convicted of certain offenses (this is referred to as the current offense) and (2) have been convicted of, and imprisoned for, specified crimes under a sentence of at least one year in prison, or of death, in Connecticut, in any other state, or in a federal prison before he or she committed the current offense.

There are two separate paths to be classified this way. Table 2 compares the persistent dangerous felony offender classification under current law and the bill.

Table 2: Persistent Dangerous Felony Offender

(proposed changes in bold italics)

OR

For prior convictions, the bill eliminates:

Penalty

Under current law, when any person has been found to be a persistent dangerous felony offender and the nature and circumstances of the offender's criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, instead of the sentence for the offense he or she stands convicted of, must sentence the offender to a term of imprisonment of up to 40 years.

Under current law, if the offender has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the specified crimes, and the court reaches the same conclusion about the offender's history and the offense, it must sentence the offender to a prison term of up to life imprisonment. (Apparently this means a 60 year sentence because the law defines a life sentence as 60 years unless the offense explicitly provides otherwise (CGS § 53a-35h)).

The bill eliminates the requirement that the court make the required conclusion in order to trigger the enhanced penalty. Instead, it requires the enhanced penalty if the offender is found to be a persistent dangerous felony offender based on his current conviction and his prior conviction or convictions.

Finally, the bill eliminates the court's duty to sentence the offender to up to 40 years if he has one prior conviction and up to 60 years if he has two prior convictions. Instead, the bill requires the court to sentence people found to be a persistent dangerous felony offender, with one prior conviction:

1. for the class A felony of murder, a term of imprisonment of not less than 40 years or more than life (60 years);

2. for a class A felony other than murder, a term of imprisonment of not less than 20 years or more than life (60 years), with 10 years that may not be suspended or reduced by the court; and

3. for a felony other than a class A felony, a term of imprisonment of not less than 10 years or more than 40 years, with 10 years that may not be suspended or reduced by the court.

The bill requires the court to sentence people found to be a persistent dangerous felony offender, with two prior convictions for the crimes listed as current offenses to a term of imprisonment of not less than 45 years or more than 60 years, with 45 years that may not be suspended or reduced by the court.

The bill specifies that this law does not apply to anyone who stands convicted of a capital felony.

§§ 20-21 PERSISTENT SERIOUS FELONY OFFENDER LAW

Classification

Under current law, a persistent serious felony offender is a person who

1. stands convicted of a felony; and

2. has been, before the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.

Current law imposes a limitation on who can be considered for this classification by specifying that a person may not be classified as a persistent serious felony offender if:

● the present conviction is for manslaughter, assault in the first degree, arson, kidnapping, robbery in the first and second degree, sexual assault in the first or third degree, aggravated sexual assault in the first degree, or sexual assault in the third degree with a firearm; and

● the prior conviction was for a crime other than those specified as current or prior offenses under the persistent dangerous felony offender law.

The bill retains the classification but it:

1. requires that the crime for which the offender stands convicted be a class A, B, C, or D felony instead of any felony thus eliminating people convicted of unclassified felonies;

2. requires two prior felony convictions, instead of one, that occurred before the commission of the current felony;

3. provides that the prior convictions could have been in this or any other state rather than in any state or under federal law;

4. eliminates the requirement that the offender was imprisoned under an imposed term of more than one year or of death for the prior offense; and

5. eliminates the limitation regarding the nature of the first and prior offenses, thus apparently permitting the current and prior offenses to be the same as those specified for the persistent dangerous felony offender classification.

Penalty

Current law authorizes the court to impose an enhanced penalty for a person found to be a persistent serious felony offender if the court is of the opinion that the offender's history and character and the nature and circumstances of his or her criminal conduct indicate that extended incarceration will best serve the public interest. Under such circumstances, current law authorizes the court, instead of imposing the sentence of imprisonment authorized by law for the current offense, to impose the sentence of imprisonment authorized by law for the next more serious degree of felony.

The bill (1) eliminates the requirement that the court make the finding that extended incarceration will best serve the public interest and (2) requires, instead of permits, the court to impose the higher sentence.

Also, it requires the court to sentence a persistent serious felony offender who presently stands convicted of:

1. the class A felony of murder, to a term of imprisonment of not less than 40 years or more than life (apparently 60 years) and

2. a class A felony other than murder, to a term of imprisonment of not less than 15 years or more than 40 years, with 15 years that may not be suspended or reduced by the court.

Finally, the bill specifies that a person who presently stands convicted of a capital felony may not be sentenced under this classification.

§§ 22-23 PERSISTENT FELONY OFFENDER

Classification

Under current law, a persistent felony offender is a person who (1) stands convicted of a felony, other than a class D felony and (2) has been, at separate times before committing the present felony, twice been convicted of a felony other than a class D felony.

The bill retains this classification but it:

1. makes it apply to people who stand convicted of a class A, B, C, or D felony, thus including people convicted of a class D felony and apparently excluding those convicted of an unclassified felony;

2. makes it apply to those with one, instead of two, prior felony convictions; and

3. specifies that the prior conviction could have occurred in Connecticut or in any other state.

Penalties

Current law authorizes the court to impose an enhanced penalty for a person found to be a persistent felony offender if the court is of the opinion that the offender's history and character and the nature and circumstances of his or her criminal conduct indicate that extended incarceration will best serve the public interest. Under such circumstances, current law authorizes the court, instead of imposing the sentence of imprisonment authorized by law for the current offense, to impose the sentence of imprisonment authorized by law for the next more serious degree of felony, and it requires that the sentence imposed may not be less than three years, and that three years may not be suspended or reduced by the court.

The bill eliminates (1) the requirement that the court make the finding that extended incarceration will best serve the public interest and (2) the three year mandatory minimum sentence requirement.

Also, it authorizes the court to sentence a persistent serious felony offender who presently stands convicted of:

1. the class A felony of murder, to a term of imprisonment of not less than 30 years or more than life (apparently 60 years) or

2. a class A felony other than murder, to a term of imprisonment of up to 30 years. (Apparently because these are class A felonies they carry a mandatory minimum of 10 years.)

Finally, the bill specifies that a person who presently stands convicted of a capital felony may not be sentenced under this classification.

BACKGROUND

Related Case-Persistent Dangerous Felony Offender

The state Supreme Court recently held that the statute that mandates sentence enhancement when the defendant is found to be a persistent dangerous felony offender and the trial court, rather than the jury, determines that extended incarceration will best serve the public interest, given the defendant's history, character, and the nature and circumstances of his or criminal offenses, violates a defendant's federal constitutional right to trial by jury (State v. Bell, 283 Conn. 748 (2007)).

The court ruled that the defendant was entitled to a new sentencing proceeding where the jury must make the determination, beyond a reasonable doubt, whether, upon consideration of the relevant factors specified in the persistent dangerous felony offender law, extended incarceration will best serve the public interest.

The court noted in its ruling that in those cases in which the defendant chooses to waive his right to a jury trial, the court may continue to make the requisite finding. Additionally, the court properly may impose an enhanced sentence if the defendant admits to the fact that extended incarceration is in the public interest.

SP/CR:tjo