Attorney General: Mr. Henry A. Bissonnette, Jr., Chairman, Board of Parole, 1990-032 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 1, 1990

Mr. Henry A. Bissonnette, Jr.
Chairman
Connecticut Board of Parole
90 Brainard Road
Hartford, CT 06114

Dear Mr. Bissonnette:

In your letter of August 9, 1990, you call our attention to the provisions of P.A. 90-261, Sec. 5 and ask our advice with regard to the following two questions:

    1. Does Section 5 of the Act apply retroactively, i.e., are all persons incarcerated "as of" October 1, 1990 who meet all other specified criteria, eligible to be considered for parole under the Act.
    2. Does the Act permit the Board to consider for parole persons who are already serving their sentences in either Community Release or Community Residence (SHR) programs.

For reasons elaborated upon below, our answer to each question is in the affirmative.

P.A. 90-261, Sec. 5 provides, in relevant part, that:

(a) A person convicted of a felony who is incarcerated on or after October 1, 1990, who received a definite sentence of more than one year, and who has been confined under such sentence for not less than one-half of the sentence imposed by the court, may be allowed to go at large on parole in the discretion of the panel of the board of parole for the institution in which the person is confined, if . . . .

Your first question asks whether the phrase "person convicted of a felony who is incarcerated on or after October 1, 1990" limits eligibility for parole consideration to those who are chronologically incarcerated for a felony conviction on or after that date, or, whether such eligibility extends to those who were so convicted and incarcerated prior to that date and remain so incarcerated on October 1, 1990.

Conn. Gen. Stat. e 55-3 provides that "[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." (Underlining added.) In considering the retroactivity of a statute, "[i]t is important to note at the outset that the mere fact that a statute is retrospective does not by itself render it invalid . . . . Thus, General Statutes, Sec. 55-3 . . . establishes a rule of presumed legislative intent . . . rather than a rule of law. If a legislative enactment contains language which unequivocally and certainly embraces existing business . . . relationships, there is nothing in Sec. 55-3 which would prevent it from so operating . . . . Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984) (citations omitted).

In this regard we note that Sec. 5(b) of the Act "unequivocally and certainly" disqualifies, from the parole consideration provided for in Sec. 5(a), all persons convicted of certain offenses enumerated therein if the offense "was committed on or after July 1, 1981."

If Sec. 5(a) applied only to persons who became incarcerated on or after October 1, 1990, it would not make sense to reach back to July 1, 1981 to identify

the persons disqualified for parole consideration. "[C]onsiderations of good sense . . . ." are pertinent in determining the retroactivity of a statute. State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983). It is a primary rule of statutory construction that each word of a statute "should be given effect and, as far as possible, the entire enactment is to be harmonized." State v. Parmalee, 197 Conn. 158, 162, 496 A. 2d 186 (1985).

Further, we do not see how the application of Sec. 5(a) of the Act "imposes any new obligation on any person or corporation" as that phrase is used in Conn. Gen. Stat. e 55-3 and is hence not subject to this "rule of presumed legislative intent" at all.

Lastly, as we read this Act, the operative word is "incarcerated." Subject to the exceptions noted above, eligibility extends to those who are "incarcerated" either "on or after October 1, 1990." Persons who were "incarcerated" prior to October 1, 1990 and whose incarceration continues through that date are certainly "incarcerated" within the time frames referred to in the Act.

To conclude otherwise would require us to read the critical statutory language to limit eligibility to those whose incarceration "commenced" on or after October 1, 1990. In construing a statute, "it is not the province of a court to supply what the legislature chose to omit." In re Petition of State's Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979). Hence, we cannot add the word "commenced" to our construction of this Act.

With regard to your second question, the critical statutory term is "incarcerated." Your question as clarified in discussions subsequent to your letter asks, in effect, whether persons who have been "transferred," pursuant to Conn. Gen. Stat. e 18-100 to the programs authorized by that statute, are still "incarcerated" for the purposes of P.A. 90-261, Sec. 5.

Sec. 18-1001 provides, in part, that:

(e) If the commissioner of correction deems that the purposes of this section may thus be more effectively carried out, he may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility, or to an approved community residence with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. Any inmate so transferred shall remain under the jurisdiction of said commissioner. Any inmate transferred to an approved community residence shall also be subject to specifically prescribed supervision by personnel of the department of correction until his definite or indeterminate sentence is completed.

In Asherman v. Meachum, 213 Conn. 38, 566 A.2d 663, (1989) the Court rejected the claim that community transfer under Sec. 18-100 (supervised home release) was the equivalent of parole for due process purposes and held, in part, that

[i]t is true that, in ordinary circumstances, a person on home release lives as independently, under as little daily supervision, as does a person on parole. Nonetheless, for a person on home release status, that supervision, as a matter of law, continues to be vested in the department of correction, just as it does for any incarcerated inmate. Conn. Gen. Stat. e 18-100(e) . . . . For a person on home release, as for any incarcerated prisoner, absconding constitutes a new crime, escape, that may lead to an added prison term. Conn. Gen. Stat. e 53a-169(a)(2). Asherman, supra, at 48.

(Underlining added.)

In line with the Court's conclusions in Asherman, it is clear that inmates placed in community release programs by the Department of Correction pursuant to Conn. Gen. Stat. e 18-100 are still "incarcerated" with that department and hence, are eligibile for parole consideration.

Very truly yours,


CLARINE NARDI RIDDLE
ATTORNEY GENERAL


Stephen J. O'Neill
Assistant Attorney General

CNR/S.O'N/gab


1Since they are irrelevant to your question, we have omitted the changes in Sec. 18-100(e) which are not effective until July 1, 1993. (See P.A. 90-261, Sections 2 and 19.)


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