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Forgotten in this Cheshire mess is the sentencing commission that started work in May, which was charged with looking at how to change the state’s sentencing laws for the better. Ah, back in May, when Komisarjevsky was still on GPS monitoring and the Petit women were alive.

Glad to hear that someone thought to ask them of their other business. Cheshire has overshadowed the fact that CT has draconian drug laws and there is a racial disparity in sentencing and even charging.

[New Haven Public Defender Tom] Ullmann and several other members suggested the task force may be missing a chance to make long-term changes in the justice system.

Others said the group will continue to discuss issues such as mandatory minimum drug sentences and racial disparity in sentencing even as it deals with parole system gaps exposed by the Cheshire case.

Some of the juicy things on their agenda:

The task force divided into four subcommittees that would discuss alternatives to incarceration, sentencing structure, the racial imbalance in prisons and how to classify some drug offenses and other crimes that carry a broad range of possible sentences.

These are all excellent areas of investigation and reform. Thankfully last year the legislature eliminated the disparity between crack and powder cocaine sentencing (I think…I may be imagining it).

Prison overcrowding is an immense problem and all of these avenues will help to reduce it and hopefully, get to the source of the problem for most drug offenders: addiction.

I wish there was some way to study racial disparities in charging, but it seems too daunting a task.

Of all the groups commenting on Cheshire, this task force has been oddly silent. Not all members agree:

Some members say the task force should lend its voice to the Cheshire debate so the state does not make any rash changes.

“I think it’s incumbent upon us to respond,” said Andrew Clark, a group member and the administrator of the Institute for the Study of Crime & Justice at Central Connecticut State University. “We have to ask tough questions and come up with real solutions.”

But there has been, at least for some members, a shift in focus.

The sentencing task force changed its focus at the same time. It studied tougher burglary laws and looked at the impact a tougher “three strikes and you’re out” law would have on prison overcrowding.

“It’s almost like members are bending over backward to join the throng of punitive measures,” said Jon Schoenhorn, a task force member and president of the Connecticut Criminal Defense Lawyers Association. “It violates the entire purpose of why this task force was created.”

“Three strikes laws” + prison overcrowding: Not gettin’ better any time soon.

The Judiciary Committee will hold an emergency hearing on Gov. Rell’s parole ban on Monday. Since she refused to testify, they’ve asked DOC commissioner Theresa Lantz to testify instead. Here [pdf] is the letter inviting her. The crux:

In particular, the committee would like to know whether you anticipate there will be a surge in inmate population. We also want to know what the contingency plans the Governor has to protect corrections staff and host communities in the event there is a population surge beyond what can be safely accommodated in Connecticut’s correctional institutions.

The Governor has implied that her ban on parole of violent offenders is temporary. On Friday, she stated: “This policy, which follows the arrest Friday of a Connecticut parolee accused in Hartford carjacking, will remain in place until reforms of the parole process are complete.”

We also need to know what reforms of the parole process the Governor believes must be enacted by legislation and which reforms can be done by the administration through regulations. Once we have the administration’s definitive enumeration of legislative proposals, we can include them on the agenda for the Committee’s upcoming hearing on criminal justice reforms.

A bit too nice for my liking, but this is politics.

I’d like to point to yesterday’s decision by a Federal Judge in California, holding that jail officials violated the prisoners’ constitutional rights when they had them sleep on concrete floors because of chronic overcrowding. The LATimes piece is here. Connecticut’s prisons are already overflowing and if you don’t think that inmates here are sleeping on floors then you’re lying to yourself.

Another thing that irks me is the continued misreporting of the Cheshire accused. During Colin McEnroe’s afternoon show on WTIC, the news included this statement: “Both accused had extensive criminal records”. No, they did not. Hayes did, Komisarjevsky did not. I guess I’ll keep repeating it till people get it right.

The most interesting story is this one about lawmakers considering a proposal to limit probation to a 2-year term, down from the current 5-years.

The goal is to focus supervision on offenders during their first two years of probation, when most violations occur, said William Carbone, executive director of the state Court Support Services Division.

Nearly 90 percent of probation violations in the state occurred during the first two years, according to statistics presented yesterday during a hearing in Hartford.

The option would give offenders an incentive to turn their lives around and would reduce the number of people who go back to prison, Carbone said.

Now this is sensible legislation, which comes from the sentencing task force, which has studies these issues over time.

Judge Patrick Clifford, chief administrative judge for criminal matters, said judges should have the right to order probation terms longer than two years.

Longer terms might be warranted in cases in which larceny offenders need time to repay victims, Clifford said. But he agreed most people on probation don’t need more than three years.

“If the person hasn’t violated within two or three years, it’s kind of just waiting for them to make a mistake,” Clifford said.

Okay, enough of the good stuff. On to the depressing stuff.

More stories this morning on Gov. Rell’s parole ban, but this time with more substance. First up is the prison population shift. As noted yesterday, more than 1,200 non-violent inmates are being fast-tracked for parole to make room for the violent offenders who have been denied parole.

The next one says simply: Parole Review Affects Hundreds.

Nearly 40 percent of all parolees were serving sentences for drug offenses, which are not classified as violent, according to state records. But there are also hundreds of parolees completing sentences for killings, rapes, robberies and kidnapping. Murderers are no longer eligible for parole, but 60 inmates who committed murders before a 1981 change in the law are on parole.

In recent years, the number of parole violators back in prison at any one time has hovered between 400 and 500, state records show. But that may rise considerably with Rell’s crackdown.

“If we identify anyone in this review who has failed to follow the terms of their release - or if anyone currently on parole fails to do so in the future - we will revoke their parole and return them to prison to serve the balance of their sentence,” Rell said last weeek.

With much being said of Governor Rell’s ban on parole in the last few days (and most of it favorable), it must be pointed out what the impact of such a ban shall be. Here’s a story on just that. The highlights:

The Board of Pardons and Paroles is reviewing the cases of 400 to 600 inmates who were scheduled for release on parole.

These are inmates who were already granted parole (and some, it is safe to say, in the last few months), so now they have to be housed again and perhaps there is a legal challenge here. While there is no liberty interest in parole, there is a liberty interest in parole revocation. Canceling parole after granting it would be akin to a revocation of parole.

The Department of Correction is reviewing the files of 1,200 level one inmates to identify non-violent offenders to release to halfway houses to open bed space for violent offenders.

So now you have a number of inmates who will be rushed through parole to make room for those who have been granted it, but will not be released. Good for the 1,200, but is it really good for safety?

Rell said that there are no current or expected plans to build new or expand the state’s current prisons.

Ah, of course. Because Connecticut’s prisons are underpopulated and there are plenty of empty beds.

Lawlor said if violent offenders can’t receive parole, the state’s prison population will only grow more.

There are more than 19,000 inmates in Connecticut’s prisons, originally designed to house 17,000. Lawlor said that the federal courts could order a mass release.

Oh wait, so you mean there is a prison overcrowding problem? The best way to solve that is to ban parole for all violent offenders. No, it isn’t? Hmm.

East Haven Rep. Michael Lawlor, co-chairman of the Judiciary Committee, said the state’s prison population has grown by 280 inmates since the July 23 Cheshire home invasion, in which a mother and her two daughters were killed.

This number will only continue to grow. Estimates put the projected increase at 1,500 over the next year. I guess I can safely delete these posts.

Of course, there are the “in the trenches” consequences:

Judges are setting higher bond for burglars and other criminals; defendants are receiving longer sentences; and the Board of Pardons and Paroles is more conservative about who gets parole.

In case we’ve all forgotten, here’s a reminder from a previous post, quoting the Office of Policy and Management’s “Comprehensive Plan For the Connecticut Criminal Justice System 2007 [pdf]“:

• Not shockingly, inmates released from prison with no community supervision were most likely to be reconvicted and resentenced to prison for a new offense.

The Governor, not surprisingly, has declined to appear before the judiciary committee to discuss her “ban”.

While the calls for three-strikes laws and stricter sentences were questionably wrong, this ban on parole is unquestionably knee-jerk and almost certainly illegal.

Serenity now….serenity now.

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.

It had to happen. With the legislature convening for a special session yesterday, state Republicans attempted to introduce criminal justice reform bills in the wake of the Cheshire killings. Democrats steadfastly refused.

The Republican push for votes in both chambers is an early effort to brand the GOP as the force behind any Cheshire reforms and the Democrats as culpable if nothing happens.

“No question about it, we’re saying it is our issue,” said Sen. David Cappiello, R-Danbury.

As opposed to, you know, the citizens of the state.

The most interesting thing to come out of yesterday’s hearing (thus far) is the cost reporting of the Office of Fiscal Analysis and the costs are quite steep. For example, the cost of adopting a “three strikes” law [pdf] would be $100 million five years from now. This includes the cost of additional state’s attorneys and public defenders, besides the cost of incarceration.

Perhaps instead of building a new prison, the State might just want to re-open the North Block [pdf] at Cheshire CI. Cost of doing that? $10.5 million for this next year.

How about just making burglaries violent offenses [pdf] and therefore ineligible for parole until service of 85% of the sentence? $1.3 million after six months, $4.7 million after one year and a measly $57.0 million after five years.

Not good enough? What if we do away with parole entirely, as some have suggested? Just annual costs of $134 million and an additional $332 million - $527 million for construction costs. Good thing we have that massive surplus, eh?

I think this just highlights the need to slow down and take measured steps, doing only what is necessary and not what sounds good.

The rest of the documents submitted yesterday can be found here. The testimonies should be available shortly, as well.

Today, the legislature will hold its first hearing on the criminal justice system and any reforms in the wake of the Cheshire killings and the media is having a field day. I was going to write about the one lone story in the Courant last night, but upon awaking this morning, I see that the Courant now has 5 - count ‘em - 5 more stories. So I’ll just highlight each.

First, here comes the classic conundrum: We want to be tougher on crime, but if that involves building a prison and you choose to do it in our town, we’ll fight you tooth and nail. Meriden is apparently, the “only” viable site for a new prison and the residents are not happy and ready to fight.

Second, there’s this lengthy piece on Bob Farr and how he had no idea his job would become this difficult. However, if some people are to be believed, he should have had every indication that this nightmare would occur, because, you know, this was predictable.

Third, this story highlights the differences between both sides of the aisle in their proposals and details the Office of Fiscal Analysis’ report on the cost of these proposals: Prison population increases by 1000 a year and the new prison costs $10  100 million. GPS monitoring costs $212,000 for every 30 inmates.

Fourth, this piece analyzes whether Hayes should have been allowed to remain free after being released on parole, because he had to reschedule two meetings. Buried in the story is the fact that he had two jobs and a place to live.

Finally, the media takes this story of a death in Hartford and ties it in to the Cheshire hearings. It also misrepresents in the title: “Parole violator at scene of death”. What it doesn’t tell you (or does so ineptly - whether intentionally or otherwise) is that he was charged with violation of parole because he was at the scene. Stupid sensationalism.

I’ll be looking to the news for updates on the hearings and to Undercurrents, which I suspect will have a detailed report. There is a press conference prior to the hearings, held by, among others, A Better Way Foundation. Details here. It sure is going to be a fun day.

In anticipation of next week’s Judiciary Committee hearing on public safety in Connecticut, lawmakers on both sides of the aisle are trying to outdo each other with, in my opinion, increasingly unrealistic proposals.

Republican lawmakers called Thursday for a special session of the legislature this fall to pass tougher criminal laws in response to the triple slaying in Cheshire in July. Meanwhile, the Democratic president of the state Senate said the entire Board of Pardons and Paroles should be dismantled and replaced with criminal justice professionals.

Williams, the president of the Senate, said probably the funniest thing I’m going to hear all day:

“It looks like a rubber-stamp, perfunctory process instead of a deliberative process,” Williams said. “It’s an ancient process. It’s a per diem, part-time basis that does not provide the protections our communities need.”

Rubber-stamp? Perfunctory? With all due respect sir, have you had any dealings with the Board? I have. I can tell you it is anything but. The reporting by the press seems to indicate that the parole board meets with all its members in Hawaiian shirts, sipping mojitos, sitting on lounge chairs while they throw parole applications in the air and grant parole to those applications that fall on the ground and deny parole to those that fall on the table. My experience has been that it has taken a lot to be granted parole. Parole packages are put together by full-time employees of the Board and forwarded to the panel members. They look at transcripts, disciplinary history, criminal records (heck, they go back 10 years to see if an inmate had a violent offense conviction), programs completed, type of offense, facts surrounding the offense, police reports…

They do seem to agree on making “home invasions” a violent offense. My thoughts on that have been well documented and I will just say that I disagree with the proposal and the same result can be achieved through existing laws.

Some are also still pushing for “three strikes” laws and I can only hope that the legislators do a quick Google search, like I did, for studies on the effectiveness of three strikes laws and realize that they don’t work. They also want to shore up the “persistent offender” statute, part of which was struck down this week.

I’m also disappointed by the lack of any speakers from the other side of the courtroom at this judiciary committee hearing. But that’s to be expected. It’s understandable that the defense bar wants to lay low on this one, but that does not serve the interests of our clients and of the community at large. When everyone who has the power to change legislation in Connecticut or influence that change is chomping at the bit to go medieval, someone needs to be the voice of reason and urge people to take a step back and think before they act.

How many times can one repeat that knee-jerk legislation makes the worst legislation? I’ll give it another shot.

Kerri at Undercurrents has this great post today about the Connecticut media’s continuing disparate treatment of reporting crimes in Hartford. You’ve all heard of the Petits, but do you know who Kirk Taylor is?

The Judiciary Committee has announced speakers for its upcoming hearing on parole and sentencing laws in Connecticut in the aftermath of the Cheshire killings. I was sent the press release earlier today, which provides the following information:

“We will hear from state officials who will update the committee on recent administrative and procedural changes in our parole system that have been implemented in the aftermath of the Cheshire tragedy,” Sen. McDonald said.  “Following that, the committee will be able to speak with a leading California prosecutor, who is also currently the head of the national prosecutors’ association, and two national corrections officials regarding corrections and parole reforms in other states.”

“It is important to stress that our committee is working in a bi-partisan manner as we proceed to evaluate and move forward with proposals,” Rep. Lawlor explained.  “This forum will give everyone an opportunity to learn a lot about plea bargaining, sentencing, corrections and parole in Connecticut and around the country.  We will seek fully-drafted legislative proposals from legislators and others after the hearing.  Following this, fiscal notes and summaries for those proposals will be made available, and we will schedule a full public hearing on them as soon as possible.”

They have also set out “goals” for this hearing:

1. Establish a new crime of “home invasion” and make it clear that it is a violent offense.
2. Re-write the current “persistent offender” and “three strikes” laws to make them more useable and require mandatory sentences.
3. Provide full funding for equipment and parole/probation officers that will allow for expanded use of Global Positioning System (GPS) technology and other mandatory supervision for non-violent offenders to make room in prisons for violent, serious repeat offenders.
4. Provide full funding for equipment and parole/probation officers that will allow for GPS monitoring during probation or parole for persons convicted of a home invasion.
5. Provide full public access to conviction information, including probation and parole information, for all serious offenders, including persons convicted of home invasion.
6. Ensure interoperability of all criminal justice databases to allow police, prosecutors, probation, parole, corrections, and judicial officials to communicate with one another electronically regarding all offenders and cases.

The following speakers are confirmed:

Robert Farr, Chairman of the State Board of Pardons and Paroles.
Lisa Holden, Co-Chair of Governor Rell’s Sentencing and Parole Review Task Force and Executive Director of the Connecticut Coalition Against Domestic Violence, Inc.
Kevin Kane, Chief State’s Attorney.
Theresa Lantz, Commissioner of the Department of Correction.

Not surprisingly, no one from the defense bar or the public defender’s office.

National criminal justice officials confirmed to testify at the hearing:

James P. Fox is the District Attorney of California’s San Mateo County.  He was first elected to this position in January 1983 and has been re-elected to every four years since.  He also currently serves as the President of the National District Attorney’s Association.  Prior to that, he was the President of the California District Attorneys Association (CDAA).   Since 1991, he has been Chairman of the CDAA Legislative Committee.

Michael P. Jacobson is the current Director of the Vera Institute of Justice.  Under former New York City Mayor Rudolf Giuliani, he served as Commissioner of New York City’s Department of Correction from 1995 to 1998, and as Commissioner of the City’s Department of Probation from 1992 to 1996.  Jacobson was appointed last year by California Governor Arnold Schwarzenegger to serve on a panel of national experts to evaluate California’s prison overcrowding and parolee recidivism problems.

George Keiser is Chief of the Community Corrections/Prisons Division of the National Institute of Corrections, which is part of the Federal Bureau of Prisons within the United States Department of Justice.  He oversees NIC programs and services provided to 50 state departments of corrections and more than 1,400 state prisons in the U.S., commonwealths, and territories.

Today’s Courant has this powerful piece by Richard Rapaport about the zero tolerance and three-strike frenzy whipping through Connecticut.

Welcome to ZT Connecticut. “ZT,” if you don’t know, stands for zero tolerance. It is a philosophy and mindset invoked to justify actions ranging from the expulsion of students for bringing alcohol-based mouthwash to school, to campaigns to pass “three strikes” laws in response to last month’s heinous murders in Cheshire.

Culled from the engineering lexicon, the slogan “zero tolerance” was trotted out in 1973 as Watergate’s noose tightened and Nixon Justice Department officials needed a tough-sounding anti-crime slogan. In the ’80s, the Navy adopted ZT to add rhetorical muscle to a purge of seagoing potheads.

From there, ZT entered civilian drug enforcement and then locked its tentacles around the justice system in the guise of “zero tolerance for crime.”

This same ZT sub-species has been roused from slumber this summer in Connecticut to induce normally even-keeled citizens to jump on the “three strikes” bandwagon, and to create a platform for those who see no shame in advancing their own social agenda in the face of the tragedy in Cheshire.

So I did a simple search for three strikes laws on Google and found the following:

The Cheshire killings have gotten a lot of press and so today, activists in Hartford held a press conference. Undercurrents has the story and the statement:

We are here today because we are outraged, shocked and saddened by the recent deaths in our state. We grieve with the Hawke-Petit family in Cheshire as well as with the numerous families throughout the state of Connecticut who have had to deal with the senseless murders of their loved ones.

We are also here to question the disparity of value assigned to certain lives. It has been observed that murders in Hartford, where the median household income is $22,140, garner none of the fanfare that the tragedy in Cheshire, a town with a median household income of $85,664, has received.

We are sure that the horrific nature of the Cheshire home invasion contributed to the local as well as national media coverage of this tragedy. And we are sure that this tragedy hit home for many people who live in neighborhoods similar to the one that the Hawke-Petit family lived in. But we are unsure as to why murders that are just as random and senseless in our inner-cities don’t garner the same attention or outpouring of grief. Xion Davidson and Kent McLaurin were gunned down and killed less than a month ago, and their murders have been all but forgotten by the major news outlets, yet we are inundated daily with stories of how the murders in Cheshire are affecting the lives of the people of Connecticut.

Have we as a society become so far removed from each other that we can only identify and grieve over the lives of those who share our own background?

Legislators are proposing “The Petit Home Invasion Protection Act” and one of the options they will consider is increasing the penalty for Burglary to 25 to life.

Connecticut has only one other felony with that kind of punishment: Murder.

This stiffer punishment being proposed can be easily accomplished by using some of the other statues already on the books and I’m not talking about persistent offender statutes.

Let’s take a look at burglary:

I want to be him:

“I’m the head of the [public defenders']office for New Haven and I’m a vocal anti-death-penalty person in the community,” [Tom] Ullmann said. “It would be a terrible message if I didn’t take this case. There was never any hesitation in my mind about taking it. As a lawyer, I would always rather be on the side that’s advocating for someone’s life rather than planning, plotting, strategizing and intending to kill someone.”

“Frankly, I never thought I’d have to deal with another death-penalty case in New Haven,” Ullmann said Tuesday in a telephone interview from a conference in Oklahoma City. Culligan represented Hayes in court Tuesday.

“However, the responsibility is pretty clear,” said Ullmann, who participated in a protest march outside the prison where serial killer Michael Ross was executed in 2005. He also was among a group of defense lawyers who called for an end to the death penalty at the state Capitol that year.

“I don’t look at that responsibility as just providing adequate counsel but providing zealous and aggressive representation,” Ullmann said. “And that is what we intend to do. We ultimately will be expending an incredible number of resources to prepare whatever defense there is, including saving Mr. Hayes’ life.”

More here