PA 15-2, June 2015 Special Session—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 act replaces the prior penalty structure for drug possession crimes, which punished possession of most types of illegal drugs as felonies. It creates a new structure that punishes possession of half an ounce 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 (see Table on Penalties). 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 act:

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. allows board members to serve 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 (a) develop a pardon eligibility notice explaining the pardons process and (b) provide 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 (OVS) 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, & 21 — DRUG POSSESSION CRIMES

Drug Possession Penalties

The act replaces the prior penalty structure for drug possession crimes, which punished most types of illegal drug possession as felonies. Under the act's new penalty structure, possessing half an ounce or more of marijuana or any amount of another illegal drug is a class A misdemeanor, 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 act, which is punishable by a class E felony prison sentence.

Table 1 shows the prior penalties for the drug possession crimes that the act 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 half an ounce of marijuana is not punishable as a crime (see BACKGROUND)).

Table 1: Drug Possession Penalties under Prior Law That Are Replaced by the Act's New Penalty Structure

Possession Crime

Penalties under Prior Law

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

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

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

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

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

Four ounces or more of marijuana or any quantity of other hallucinogens

First offense: class D felony

Subsequent offenses: class C felony

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

Any other illegal drug or at least a half ounce but less than four ounces of marijuana

First offense: up to one-year prison term, up to $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 act extends eligibility for release to home confinement by the DOC commissioner to inmates sentenced for any type of drug possession crime. Previously, this type of release was only available to those sentenced for possessing a half ounce to four ounces of marijuana or any quantity of 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 act 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 act does not change certain consequences of a conviction of these types of drug possession and cannot be construed to do so, including provisions:

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

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 act also makes conforming changes to criminal possession of a pistol, revolver, firearm, ammunition, or electronic defense weapon. ) ( 2-7 & 21).

The act also does not affect the authority of the appropriate commissioner, based on a drug possession conviction, 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 act no longer allows a juvenile charged with one of these crimes to be tried in adult court and sentenced as an adult. Previously, a prosecutor could request a hearing on whether to transfer a case involving a juvenile charged with felony drug possession from juvenile court to Superior Court (CGS 46b-127).

Drug Possession Near School or Day Care Property

Prior law enhanced the 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 was a mandatory two-year prison term running consecutively to the prison term imposed for the underlying possession crime, but a judge could depart from the mandatory sentence under certain circumstances.

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

Effect on Other Crimes

The act specifies that the act 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 prior law, the Board of Pardons and Paroles consisted of 20 members, with six full-time members (including the chairman) and 14 part-time members.

On July 1, 2015, the act 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 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 act 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 act:

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 act's provisions on June 30, 2015 and

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

As under prior 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 act increases, from two to three, the number of panel members that must be present at a parole hearing.

The act 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 act requires members to undergo training annually.

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

Eligibility

The act 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 act's procedures could be released on parole under existing law after serving half of their cumulative sentences. They can also be released within six months of the end of their sentences if they agree to be subject 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 act, 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 act 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 act 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 act expands the board chairman's authority, in consultation with the board's executive director, to adopt regulations for an expedited pardons process.

Prior law required the chairman, in consultation with the executive director, to 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) not convicted during the five years before receiving the pardon; and (c) convicted and released from prison at least 10 years earlier.

The act 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.

10 — PARDON ELIGIBILITY NOTICE

The act 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; and completes parole, 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 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 act 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 act requires OVS to notify victims registered with the board when the board schedules a parole hearing for an inmate. The notice must provide the time, date, and location of the hearing and include information that the victim can make a statement at the hearing or submit a written statement, as allowed by existing law. At a hearing, the act requires the record to reflect that the office took all reasonable efforts to notify registered victims.

The act also 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 act 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

Possessing Less than Half an Ounce of Marijuana

By law, possessing less than a half ounce 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).

OLR Tracking: CR: JKL: MS: cmg