a public defender

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Wow. Well, so much for an event free weekend. Governor Rell announced a ban on parole for all violent offenders late Friday. How long will this ban remain in effect? Until lawmakers fix the state’s sentencing laws. Note that this will cover not only those that are convicted of violent offenses, but those that the parole board deems violent, despite not having a violent conviction in the last ten years.

So, basically, the Governor has superceded statute by this announcement. Might this not be a separation of powers problem?

The governor has also directed the Board of Pardons and Paroles to conduct an immediate review of all current parolees who were sentenced for a violent offense.

It may just be me, but the bit about the ban remaining in effect until lawmakers fix the state’s sentencing laws seems like a bit of a threat.

Judiciary Committee co-chair Mike Lawlor responded to this announcement via a press release in which he says:

“I understand why the Governor did what she did today and I support her decision.  In light of today’s revelations, it’s clear that the parole system has become overwhelmed by new obligations in the last few months and cases started falling through the cracks, including this one.

Sorry, Meriden. That new prison is coming up in your town.

More as it is available.

Note: Given the sensitive nature of this topic, I want to reiterate (for those who might not have read the disclaimer), that whatever I write is my opinion only and is not a reflection of the views of my employer. For all I know, the public defender’s office might officially be okay with this. Please do not misunderstand this to be an endorsement of my views. I am a public defender who happens to practice in CT. I am not writing on behalf of the CT Public Defender’s Office, nor have I ever, nor will I.

This should also not be construed as any lobbying effort or any attempt to influence the legislators. It is merely my opinion on topical issues.

Just wanted to make that clear. Thanks for reading.

I resisted. I tried very hard. I clenched my fists. I got up and walked away from the computer. I let it be for a few days, thinking it would pass. Then I read this story.

Heinous, depraved, disgusting crimes no doubt. Do they warrant a review of the parole system? Absolutely not. [That's not to say that the parole system doesn't warrant reviewing, but my point is that this should not be the sole cause. There are plenty of things wrong with the parole system here.] Both men had lengthy criminal records, but the crimes were non-violent. In Connecticut, there are two eligibility classes: 50% (non-violent) and 85% (violent).

Here’s the thing, though: Even if you’re convicted of a non-violent offense, parole has the authority to (and frequently does) classify you as violent based on history, facts of the case, even nolled or dismissed charges. In some cases, the history stretches back 10 years. Their “unofficial” policy is that if an individual has two violent felony convictions in the last 10 years, then even if the current conviction is non-violent, they are automatically classified at 85%. I have previously written about CT’s parole system here.

One of these guys had served almost 4 years of a 5 year sentence and the other had served half of a nine year sentence. By all accounts, they were model inmates and not a hint of violence in their backgrounds.

Bob Farr, Chairman of the Board of Pardons and Paroles said:

“Both offenders were deemed to be appropriate candidates for supervised parole based on their criminal history, which involved the minimum level of violence.”

“The board took a look at the history. They took a look at crimes and whether they were violent offenses, and under most standards, the individuals had no history of violent crimes they have now been charged with.

A Department of Correction spokesperson had this to say:

“Both were on a weekly reporting schedule with their parole officers and had been in full compliance with the requirements of their release, including being employed on a full-time basis.”

Yet state lawmakers are calling for a “review of parole procedures”. I hate to say it and I feel awful doing so, given the tragedies, but sometimes, these things happen. You cannot control it. As much as I dislike parole policies in Connecticut, I cannot blame them here. They are not soothsayers; they cannot see into the future.

“How do we review candidates for parole? Even though violence is not in their past record, but it shows what they can do in the future. We have to ask that question,” [State Rep.] Caligiuri said.

Read that again. Tell me if that makes any sense. Violence is not in their past, but it (what is it?) shows what they can do in the future. What shows what?

He also said

“…these men seem to have conspired to commit even more heinous crimes, instead of being rehabilitated in the state system.”

Ah, there you have it. Although he doesn’t realize he’s saying it, the question is truly: Do prisons rehabilitate and do our prisons rehabilitate? What is being done in correctional facilities in Connecticut to ensure that inmates re-enter society as productive, responsible members? Frankly, given the state of overcrowding in facilities, how much can they do?

Which is what makes this State Rep’s suggestion mind boggling:

State Sen. John Kissel, R-Enfield, said Wednesday that in light of the Cheshire home invasion, the state needs to reassess the penalties for those convicted of burglary.

Kissel, who serves as a member of the legislature’s Judiciary Committee as well as chairman of the Connecticut Sentencing Task Forece’s subcommittee on racial and ethnic disparity, said that the current law considers burglaries to be a non-violent crime. He suggested that the law be changed to require mandatory prison sentences.

Again, instead of focusing on the real problem, let’s give out harsher sentences across the board.

I’m not even going to touch the death penalty issue.

Having said all this, I would not want to be the guy who has a parole hearing scheduled in the near future.

Slightly over two months ago, I reported a study by the Pew Charitable Trusts regarding the prison population outlook from 2007-2011. I noted that Connecticut was one of only three states expected to maintain its prison population over that time period.

Today I happened across the Case Study of Connecticut. The Pew Trusts’ report about Connecticut can be found here [pdf]. It is a very interesting report - it starts off with “The Challenge” facing Connecticut from 1995-2002, then leads us through several changes implemented by the legislature and the Governor from 2002-2006 and then makes some predictions about the outlook.

It makes mention of the Act Concerning Prison Overcrowding (PA 04-234), which as recent observations suggest, has done nothing to alleviate prison overcrowding. It ends with the observation that unless the pretrial population is given more focus, the numbers will start to increase again.

I am going to have to look at Connecticut’s declining inmate population from 2002-2006 as a fond memory.

Under current jurisprudence, there is no right to parole; there is no liberty interest in parole and apparently, there is no parole scheme. Parole can do what they want and do not have to review any inmate at any point in their sentence, despite the statute seemingly stating the contrary. I may disagree with it, but that’s the way it stands and that is the effect.

So, in the near future, I don’t see a continuing decline in the prison population.

Technorati Tags: prison overcrowding, connecticut

According to a study released [.pdf file] by the Pew Charitable Trusts, Connecticut is one of three states in the country expected to maintain their prison levels through 2011. The national trend is expected to be an increase of 13 percent.

Connecticut, as previously reported, had hit its all-time high of prison population and this certainly is a good indicator of things to come. The obvious problem with such a high prison population is overcrowding.

The recent spike in the inmate population is exacerbated by the fact that there aren’t enough beds for inmates, who continue to sleep on mats on gym floors, with dozens sharing few toilets.

Brian Garnett, the corrections spokesman, concedes that overcrowding is an issue, but said the figures would be much higher if the department hadn’t collaborated with legislators and so aggressively worked to reduce recidivism among parolees and probationers. “The important perspective, while we are crowded, we’d still be more crowded if not for the steps we’ve taken,” Garnett said.

What is heartening about this study and the Courant article are the comments by legislators about what is being done to control the prison population. Primarily, there has been in an increase in probation staff and an emphasis on looking closely at technical violations and avoiding the trap of doing the easy thing: throw them back in jail.

The state’s $13 million parole and probation recidivism efforts focused on parolees and probationers locked up for non-criminal offenses, such as being late to a meeting with an officer or for losing a job, and thus, failing to meet a probation requirement. “It’s too easy to do it - ah, just send them to jail,” said [Co-Chair of the Judiciary Committee Mike] Lawlor. The theory was that by hiring more probation officers, and reducing caseloads, the probation officers had more time with clients to pinpoint programs that might keep them out of prison.

…

More than what the study could mean for overcrowding, though, Lawlor said the study highlights the fact that officials in Connecticut conservatives and liberals alike have agreed to a new approach dissecting the series of decisions that land a person behind bars. Some offenders deserve lengthy sentences, he said, while others only “need to be locked up for a short period of time,” he said.

According to figures cited in the article, Connecticut reduced the number of parolees and probationers sent back to jail on technical violations by 20%.

I was not aware of these changes (or even these figures), but I welcome this approach taken by the Department. It has long been evident that different rules apply in different jurisdictions and whether a parolee/probationer gets sent back to jail on a technical violation depends on what region he is from. Hopefully now, there will be a state-wide policy to take a second look at technical violations and seek out alternative remedies rather then sending them back to jail.

Technorati Tags: prison overcrowding, connecticut

The Connecticut Supreme Court today released a much awaited opinion in Troy Baker v. Commissioner [.pdf] [see previous coverage here.] The basic issue is whether a Superior Court (in this case a Habeas Court) has the jurisdiction to hear challenges to parole eligibility designations. The Appellate Court held that the court did. The Supremes overruled.

The parole scheme in Connecticut classifies three types of inmates; those that are ineligible, those that are eligible after service of 85% of their sentence and those that “were” eligible after 50% of their sentence. [I used quotations around were, because, well, they were. Until this decision.] These three classes are laid out in the General Statutes. Today, the Supreme Court held that the only mandatory language in the statutes relates to those who are NOT eligible until 85%. As for the rest, the parole board can do whatever it wants.

The essential question, therefore, is whether the statutes create a liberty interest in parole eligibility. [Please note that there is a critical distinction between parole eligibility and parole suitability. Baker argues the former, not the latter. The Court writes:

We begin with the text of § 54-125a. Subsection (a), which the petitioner claims gives rise to his liberty interest in being considered eligible for parole after serving 50 percent of his sentence, provides in relevant part: ‘‘A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board .

We see nothing in this text that affirmatively grants any inmate the right to parole eligibility after serving one half of his or her sentence. In contrast, subsection (b) of the statute instructs that an inmate deemed to be a violent offender by the board ‘‘shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed.’’ . .

The Court then does something even more…interesting. It holds that parole eligibility is not part of a criminal sentence. This holding is extremely problematic, for both defense attorneys and prosecutors. Plea bargaining will take on a whole new facet. Based on my experience, the most common question asked by defendants to their attorneys is: “When will I be released?” Parole eligibility is probably the most significant factor in answering that question. It’s hard to reach the conclusion that it is not an integral part of the sentence, but the Court does just that.

Finally, the Court lets stand a prior decision, Johnson v. Commissioner, which challenged the same statute’s retroactive application. Johnson held that a retroactive application of this statute was unconstitutional.

What this also means is that if the legislature was worried about prison overcrowding before this decision, I wonder how they feel now.

Hmm. I must ponder this some more.