OLR Bill Analysis

HB 7104

Emergency Certification

AN ACT IMPLEMENTING PROVISIONS OF THE STATE BUDGET FOR THE BIENNIUM ENDING JUNE 30, 2017 CONCERNING GENERAL GOVERNMENT PROVISIONS RELATING TO CRIMINAL JUSTICE.

SUMMARY:

This bill replaces the current penalty structure for drug possession crimes, which punishes possession of most types of illegal drug as felonies. It creates a new structure that punishes possession of .5 ounces or more of marijuana or any amount of another illegal drug as a class A misdemeanor but allows the court to (1) suspend prosecution for a second offense and order treatment for a drug dependent person and (2) punish third-time or subsequent offenders as persistent offenders, which subjects them to the penalties for a class E felony. It also reduces the enhanced penalty for drug possession near schools or day care centers from a two-year mandatory prison sentence to a class A misdemeanor with a required prison and probation sentence.

Among other things, the bill:

1. reduces the size of the Board of Pardons and Paroles from 20 to between 10 and 15 members, while increasing the number of members who serve full-time from six to 10;

2. removes the bar on board members serving on both parole and pardons panels;

3. allows the board to consider an inmate for release on parole after an evaluation, but without a hearing, if he or she was convicted of a non-violent crime and the board does not know of any victim of the crime;

4. expands the board chairman's authority, in consultation with the board's executive director, to adopt regulations on an expedited pardons review process;

5. requires the board to develop a pardon eligibility notice explaining the pardons process and requires providing the notice to people when they are sentenced; are released from the Department of Correction (DOC); and complete parole, probation, or conditional discharge;

6. requires the Judicial Branch's Office of Victim Services to notify victims registered with the board about parole hearings, notify victims and the public about how victims can register for hearing notices, and provide notice or seek to locate certain victims; and

7. makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2015, except the provisions on (1) board membership and panels and expedited pardons requirements take effect June 30, 2015 and (2) pardon eligibility notices, parole release without a hearing, panel members certifying to reviewing documentation, and victim notices are effective July 1, 2015.

1-8 & 19 — DRUG POSSESSION CRIMES

Drug Possession Penalties

The bill replaces the current penalty structure for drug possession crimes, which punishes most types of illegal drug possession as felonies. Under the bill's new penalty structure, possessing .5 ounces or more of marijuana or any amount of another illegal drug is a class A misdemeanor (punishable by up to one year in prison, a fine of up to $2,000, or both) but the court can:

1. suspend prosecution for a second offense if the person is drug dependent and the court orders substance abuse treatment and

2. sentence a third-time or subsequent offender as a persistent controlled substance possession offender, a new designation created by the bill, which is punishable by the prison sentence for a class E felony (up to three years in prison).

Table 1 shows the current penalties for the drug possession crimes which the bill replaces with the new penalty structure described above (provisions on drug possession on school or day care property are discussed separately below and possessing less than .5 ounces of marijuana is not punishable as a crime (see BACKGROUND)).

Table 1: Drug Possession Penalties Under Current Law that are Replaced by the Bill's New Penalty Structure

Possession Crime

Penalties Under Current Law

Narcotics (i.e., heroin, cocaine, and crack)

1st offense: up to seven-year prison term, up to a $50,000 fine, or both

2nd offense: up to 15-year prison term, up to a $100,000 fine, or both

Subsequent offenses: up to 25-year prison term, up to a $250,000 fine, or both

Alternative sentence: up to 3-year indeterminate prison term with conditional release by DOC commissioner

4 oz. or more of marijuana or any quantity of other hallucinogens

1st offense: class D felony punishable by up to 5-year prison term, up to a $5,000 fine, or both

Subsequent offenses: class C felony, punishable by up to a 10-year prison term, up to a $10,000 fine, or both

Alternative sentence: up to 3-year indeterminate prison term with conditional release by correction commissioner

Any other illegal drug or at least oz. but less than 4 oz. of marijuana

1st offense: up to one-year prison term, up to a $1,000 fine, or both

Subsequent offenses: class D felony

Alternative sentence for subsequent offenses only: up to three-year indeterminate prison term with conditional release by DOC commissioner

The bill extends eligibility for release to home confinement by the DOC commissioner to inmates sentenced for any type of drug possession crime. Currently, this applies to those sentenced for possessing .5 to four ounces of marijuana or controlled substances that are not narcotics or hallucinogens. By law, released offenders cannot leave their homes without authorization; DOC can require electronic monitoring, drug testing, and other conditions; and offenders can be returned to prison for violating release conditions.

By reducing the penalty from a felony to a misdemeanor for drug possession as described above (except for those sentenced as persistent offenders), the bill eliminates certain consequences of a conviction. For example, a felon:

1. loses his or her right to vote and hold office while incarcerated or on parole, but later can have those rights restored (CGS 9-46 and -46a);

2. is disqualified from jury service for seven years (CGS 51-217); and

3. could have his or her felony conviction considered as a factor in denying, suspending, or revoking certain state-issued professional licenses and credentials, such as those for many health care providers, professional bondsmen, and electricians.

However, the bill does not change certain consequences of a conviction of these types of drug possession, including provisions:

1. allowing the Police Officer Standards and Training Council (POST) to cancel or revoke a POST-certified officer's certificate;

2. making a person ineligible for a state permit to carry a pistol or revolver or an eligibility certificate for a pistol, revolver, or long gun (The bill also makes conforming changes to criminal possession of a pistol, revolver, firearm, ammunition, or electronic defense weapon.); and

3. allowing the appropriate commissioner to refuse to issue, suspend, or revoke a family day care home license, an approval for a family day care home staff member, a bail enforcement agent license, or a surety bail bond agent license ( 2-7 and CGS 19a-87e, 29-152f, and 38a-660).

By reducing the penalty for these crimes to a class A misdemeanor (except for those punished as persistent offenders), the bill no longer allows a juvenile charged with one of these crimes to be tried in adult court and sentenced as an adult. Currently, a prosecutor can request a hearing on whether to transfer a case involving a juvenile charged with felony drug possession from juvenile court to the Superior Court (currently, this applies to juveniles ages 14 through 17 but, beginning October 1, 2015, PA 15-183 restricts this transfer procedure to juveniles ages 15 to 17). The court can transfer the case to the adult court if (1) there is probable cause the child committed the crime and (2) both the child's and public's best interests are not served if the case remains in juvenile court. If the case is transferred to the Superior Court, the court can return the case to the juvenile court for good cause (CGS 46b-127(b)). Under the bill, juveniles charged with drug possession crimes, except as persistent offenders, must have their cases heard in juvenile court.

Drug Possession Near School or Day Care Property

Under current law, there is an enhanced penalty for committing one of the possession crimes described in Table 1 within 1,500 feet of (1) an elementary or secondary school by someone who is not attending the school or (2) a licensed day care center identified as such by a sign posted in a conspicuous place. The penalty is a mandatory two-year prison term running consecutively to the prison term imposed for the underlying possession crime, but a judge can depart from the mandatory sentence under certain circumstances (see BACKGROUND).

The bill changes the penalty to a class A misdemeanor and requires a judge to impose a sentence that includes prison and probation. The bill requires that, as a condition of probation, the offender perform community service in a manner ordered by the court.

Effect on Other Crimes

The bill specifies that the bill and existing law's provisions on drug possession crimes do not alter or modify the meaning of the provisions punishing manufacturing, distributing, selling, prescribing, compounding, transporting with intent to sell or dispense, possessing with intent to sell or dispense, offering, giving, or administering to a person illegal drugs.

9 — BOARD OF PARDONS AND PAROLES MEMBERS AND PANELS

Under current law, the Board of Pardons and Paroles consists of 20 members, with six full-time members (including the chairman) and 14 part-time members.

On July 1, 2015, the bill reduces the board's membership from 20 to between 10 and 15. It does so by increasing the number of full-time board members from six to 10, ending the terms of current part-time members on June 30, 2015, and reducing the number of part-time members from 14 to a maximum of five, as determined by the governor.

The bill retains most of the existing appointment procedures including qualifications for members, appointing members as either full-time or part-time, referring nominations to the Judiciary Committee, and approval by both houses of the legislature. But the bill:

1. allows the governor, through September 1, 2015, to appoint someone as a part-time member without legislative approval if the appointee was a part-time member whose term ended under the bill's provisions on June 30, 2015 and

2. no longer requires designating appointees as parole or pardons panel members (currently 12 appointments serve on parole panels, seven serve on pardons panels, and the chairman can serve on both; the bill removes the restriction on serving on both types of panels).

As under current law, a parole panel must consist of two members and the chairman or a full-time member designated by the chairman. Beginning January 1, 2016, the bill increases from two to three the number of panel members that must be present at a parole hearing.

The bill also specifies that any decision of the board or a panel must be by a majority of those present.

By law, board members must be trained in the criminal justice and parole systems, including factors in granting parole, victims' rights and services, reentry strategies, risk assessment, case management, and mental health issues. The bill requires members to undergo training annually.

9, 11-13, & 16 — PAROLE DECISIONS WITHOUT A HEARING

Eligibility

The bill creates a procedure to allow the board to consider certain inmates for release on parole without a hearing. This applies to an inmate who:

1. was not convicted of a crime involving a victim, known to the board, who was injured or killed (a) in a crime or criminal attempt or (b) while attempting to prevent a crime, apprehend a suspect, or assist a police officer in apprehension;

2. was not convicted of a violent crime or certain other crimes including 2nd degree burglary, 1st degree stalking, and criminally negligent homicide; and

3. is not prohibited from parole for any other reason.

Generally, inmates eligible for release under the bill's procedures could be released on parole under existing law after serving 50% of their sentences. They can also be released within six months of the end of their sentences if they agree to DOC supervision for one year and to be returned to prison for the unexpired term of their sentences for violating parole conditions.

Procedures

Under the bill, a board member or certain board employees can evaluate a person's parole eligibility without a hearing by (1) using risk-based structured decision making and release criteria under the board's policies and (2) reviewing an inmate's offender accountability plan, including the environment to which the inmate plans to return. An employee can only conduct this evaluation if he or she is qualified by education, experience, or training in administering community corrections, parole, pardons, criminal justice, criminology, offender evaluation or supervision, or providing offenders with mental health services.

The bill requires the board's chairman to present a member's or employee's parole recommendation to a parole release panel for approval after making reasonable efforts to obtain all information pertinent to the decision and certifying that it has been obtained or is unavailable. After he does so, the panel determines whether the person is suitable for release on parole.

The bill prohibits granting parole under these procedures unless board members and officers reviewing the inmate's file certify that they reviewed the recommendations and information.

9 — EXPEDITED PARDONS PROCESS

The bill expands the board chairman's authority, in consultation with the board's executive director, to adopt regulations for an expedited pardons process.

Under current law, the chairman, in consultation with the executive director, must adopt regulations to allow people to receive a pardon without a hearing, unless a victim requests one, if the person was:

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

2. (a) convicted of illegal drug manufacture, distribution, sale, prescription, or dispensing; illegal drug manufacture, distribution, sale, prescription, or dispensing by a non-drug-dependent person; or illegal drug possession; (b) he or she has no convictions during the five years before receiving the pardon; and (c) it is at least 10 years since the person's conviction and release from prison.

The bill expands the expedited pardons process to allow anyone convicted of a nonviolent crime to receive a pardon without a hearing unless a victim requests one. (The bill does not define a nonviolent crime.)

10 — PARDON ELIGIBILITY NOTICE

The bill requires the board to develop, by January 1, 2016, a pardon eligibility notice that explains the pardons process. The board must work with the Judicial Branch and DOC to provide the notice whenever a person is sentenced by the court, released from DOC including on pretrial release, completing parole, and completing probation or conditional discharge. The board must update the notice as necessary.

14 & 15 — PAROLE HEARING FOR VIOLENT OFFENDERS

By law, the board can hold a parole hearing for someone convicted of a violent crime and eligible for release after serving 85% of his or her sentence when that person has served 85% of the sentence. The law specifies the standard a board employee or panel must use when assessing the inmate.

The bill prohibits holding a hearing for one of these inmates unless the parole panel has the person's complete file including DOC documents, the trial transcript, the sentencing record, and records of any prior parole hearing for the inmate. Panel members must certify their review of the documents in preparation for the hearing.

17 & 18 — VICTIM NOTIFICATION OF PAROLE HEARINGS

The bill requires the Office of Victim Services to notify victims registered with the board when the board schedules a parole hearing for an inmate. The office must provide the time, date, and location of the hearing and that the victim can make a statement at the hearing or submit a written statement, as allowed by existing law. At a hearing, the bill requires the record to reflect that all reasonable efforts were undertaken to notify registered victims.

The bill requires the office to provide victims and the general public with information about how victims may register for hearing notices from the board.

For any inmate sentenced for felony murder before July 1, 1981 who is scheduled to appear before the board, the bill requires the office to:

1. work with the board to find and notify victims and their families of the parole hearing's date, time, and location and

2. if a victim is a peace officer who is deceased, provide the notice to the chief law enforcement officer in the town where the crime occurred.

BACKGROUND

Departure from Mandatory Minimum Sentences for Drug Crimes

Except for certain drug sale, manufacture, or distribution crimes, judges can impose less than the mandatory minimum sentence when 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 threaten to use or suggest that he or she had a firearm, other deadly weapon (e.g., a switchblade knife), or other instrument that could cause death or serious injury. Defendants must show good cause and can invoke these provisions only once. Judges must state at sentencing hearings their reasons for (1) imposing the sentence and (2) departing from the mandatory minimum (CGS 21a-283a).

Possessing Less Than .5 Ounces of Marijuana

By law, possessing less than .5 ounces of marijuana is punishable by a:

1. $150 fine payable by mail like an infraction for a first offense;

2. $200 to $500 fine payable by mail like an infraction for subsequent offenses (three-time violators must attend drug education, at their own expense); and

3. 60-day suspension of the driver's license or nonresident operating privileges of anyone under age 21 who is convicted of a violation (if the person does not have a license, he or she is ineligible for one for 150 days after meeting all licensing requirements)(CGS 14-111e and 21a-279a).