Attorney General: Hon. John J. Armstrong, Department of Correction, 1995-015 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 12, 1995

Hon. John J. Armstrong
Department of Correction
340 Capitol Avenue
Hartford, CT 06106

Chairman Pasquale A. Mangini
Board of Parole
90 Brainard Road
Hartford, CT 06114

Dear Commissioner Armstrong and Chairman Mangini:

In your letter of December 7, 1994 you seek our advice with regard to two questions related to the provisions of P.A. 93-219. Your letter acknowledges that we have previously responded to inquiries concerning this Act and indeed your present inquiries are follow-up questions to our previous responses. In this regard, a copy of our letter of November 23, 1994 is attached.

Your present questions are as follows:

1. Is an inmate who is subject to Section 10 of the Act and who under your letter of November 23 must serve the full term imposed by the court unreduced by any good time credits and who is in the custody of the Commissioner of Correction on the date he or she historically would have been discharged entitled to be mandatorily paroled by the Parole Board and then subject to its supervision for the remainder of the full term imposed by the sentencing court?

2. For those persons who are serving sentences for which there is no parole eligibility, but who may be eligible for community release under the provisions of Conn. Gen. Stat. 18-100c, are they entitled to be mandatorily transferred to community supervision on the date they historically would have been discharged?

For reasons elaborated upon below, our answer to both of your questions is in the negative.

In order to comprehend your questions, it is necessary to understand your reference to "historical discharge dates." In our November 23rd letter, we advised the Commissioner of Correction, in essence, that "with regard only to sentences imposed for crimes committed on or after October 1, 1994, the maximum term is not reducible by so-called 'good-time' credits which are earned during either pre or post sentence confinement."

In referring to "historical discharge dates" you mean the date upon which an inmate would have been discharged on his sentence had Section 10 of P.A. 93-219 not been enacted. Thus, an inmate whose sentence is for a crime committed on or after October 1, 1994, may have an actual discharge date of October 1, 1999 but in light of your reference this inmate could have an "historical discharge date" of October 1, 1998.

Your questions therefore come down to whether the reaching of this "historical discharge date" triggers a mandatory, as distinguished from discretionary, granting of parole or community transfer.

Such a conclusion would be in stark conflict with other provisions of P.A. 93-219. In this regard, we note that Sec. 2 of the Act, now designated Conn. Gen. Stat. 54-125a(a), provides that the granting of parole shall turn upon a favorable conclusion concerning such factors as whether "there is a reasonable probability that [the] inmate will live and remain at liberty without violating the law, and ... [whether] such release is not incompatible with the welfare of society."

The consideration of these factors clearly calls for the exercise of judgment and discretion. Their statutory inclusion in the parole process is convincing evidence that no parole is automatic or mandatory. Rather, release on parole follows a judgmental review and evaluation of the critical points of consideration as provided for by statute.

We reach a similar conclusion with regard to the second question posed to us. Section 1 of the Act, now Conn. Gen. Stat. 18-100c provides that:

A person convicted of a crime who is incarcerated on or after July 1, 1993, who received a definite sentence of two years or less, and who has been confined under such sentence for not less than one-half of the sentence imposed by the court, less such time as may have been earned under the provisions of section 18-7, 18-7a, 18-98a, 18-98b or 18-98d, may be released pursuant to subsection (e) of section 18-100 or to any other community correction program approved by the commissioner of correction. (Underlining added.)

Subsection (e) of Section 18-100, in turn provides, in part, that:

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 with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. (Underlining added.)

The "purposes of this section" are articulated in subsection (a) of Section 18-100 and include "arrang[ing] for the continuation of [an inmate's] employment ... [and] provid[ing] for [an inmate's] attendance at an educational institution ...." By the precise terms of this statute, these purposes are to be advanced at the "discretion" of the Commissioner of Correction or his designee.

Thus, as with parole, the statutory process providing for community transfer necessarily implicates the use of judgment and discretion. Mandatory or automatic transfer is not statutorily contemplated.

Very truly yours,

Richard Blumenthal
Attorney General

Stephen J. O'Neill
Assistant Attorney General

RB/S'ON/gab

Attach.


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