CSAO: Judiciary Committee - March 15, 2017 - H.B. No. 7256

TESTIMONY OF THE DIVISION OF CRIMINAL JUSTICE

IN SUPPORT OF:

H.B. No. 7256 (RAISED) AN ACT CONCERNING REVISIONS TO CERTAIN CRIMINAL JUSTICE STATUTES AND THE REPORTING OF THE DEATH OF ANY PERSON IN STATE CUSTODY.

JOINT COMMITTEE ON JUDICIARY
March 15, 2017

The Division of Criminal Justice respectfully recommends and requests the Committee’s JOINT FAVORABLE SUBSTITUTE Report for S.B. No. 7256, An Act Concerning Revisions to Certain Criminal Justice Statutes and the Reporting of the Death of Any Person in State Custody. This bill was submitted to the Committee as part of the Division of Criminal Justice Legislative Recommendations to the 2017 Regular Session of the General Assembly, our legislative package.

H.B. No. 7256 addresses four distinct issues:

SECTION 1 of the bill would require all state departments and agencies to report to the State’s Attorney the death of any individual in the care or custody of that agency. This legislation was first introduced in last year’s session (S.B. No. 364), where it was passed by the Senate on the consent calendar but not acted upon by the House of Representatives.

The State of Connecticut is responsible for the care and welfare of many populations of vulnerable individuals ranging from youths confined in juvenile facilities to developmentally disabled adults in group homes or other facilities. Many of these populations have special needs making them particularly vulnerable. In 2013, The Hartford Courant published an investigative report concluding that dozens of vulnerable individuals had died in group homes, institutions and other facilities between 2004 and 2010. In many of these cases, abuse or neglect was cited as a factor in the death.

Section 1 of H.B. No. 7256 ensures that notice is provided to an independent third party, that being the appropriate State’s Attorney, of such deaths to ensure that an investigation into the circumstances surrounding the individual’s death can be conducted if appropriate. In some instances, the State’s Attorney is already notified because a death has been reported to the police, who in turn notify the State’s Attorney. However, there is presently no requirement that either the police or the State’s Attorney be notified as would be established by this bill. The review of such deaths to determine if further investigation is in order is an appropriate function assigned to the State’s Attorney pursuant to Article XXIII of the Connecticut Constitution, which places the responsibility for the investigation and prosecution of all criminal matters with the Division of Criminal Justice, i.e., the State’s Attorney.

The Division would note an apparent scrivener’s error in that the first word of section 1 "The," should be changed to "Each" to read "Each department head etc." For this reason, the Division is recommending a JOINT FAVORABLE SUBSTITUTE Report for this bill.

SECTION 2 of H.B. No. 7256 simply moves the word "of" and adds a comma within section 53a-70c, Aggravated Sexual Assault of a Minor, to clarify the punishment provisions of that statute for first time offenders. The relevant portion of the statute provides:

"Aggravated sexual assault of a minor is a class A felony and any person found guilty under this section shall, for a first offense, be sentenced to a term of imprisonment of twenty-five years which may not be suspended or reduced by the court and, for any subsequent offense, be sentenced to a term of imprisonment of fifty years which may not be suspended or reduced by the court. " C.G.S. § 53a-70c(b).

This change is necessary to make it consistent with Section 53a-35(a)(3), which provides that "For the class A felony of aggravated sexual assault of a minor under section 53a-70c, a term not less than twenty-five years or more than fifty years."

Section 2 of H.B. No. 7256 removes any confusion by the very slight amendment of moving the word "of" and adding a comma, to say that "for a first offense, be sentenced to a term of imprisonment [], twenty-five years [of] which may not be suspended or reduced by the court".

SECTION 3 addresses concerns with Section 53a-167c as it relates to assaults on health care workers. Under subsection (c) the statute provides a "defense" that the person is "a person with a disability" as defined in Section 46a-51 (13) (15) or (20) and the defendant’s "conduct was a clear and direct manifestation of the disability." The first problem is that it is a defense as opposed to an affirmative defense. As a defense, the defendant needs only to raise it and the state then must disprove it beyond a reasonable doubt. The second problem is that for a mental disability it refers to a very broad definition: in Section 46a-51 (20), which is anything in the current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association. This would include anti-social personality disorder (ASPD). ASPD is manifested by repeated criminal or otherwise anti-social conduct. The effect of the statute in its current form is that it permits "open season" on health care workers. For example, an individual with ASPD could attack staff at a state psychiatric hospital and then raise the defense. The state would then have to disprove that defense beyond a reasonable doubt.

SECTION 3 of H.B. No. 7256 would make it an "affirmative defense" that the defendant must prove by a preponderance of the evidence, just as insanity is an affirmative defense under Section 53a-13. Additionally, it would except from the definition of mental disability under 46a-51(20) "an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

SECTION 4 of H.B. No. 7256 makes a largely technical change and corrects an oversight that occurred in the drafting of Public Act 16-148, An Act Concerning Compelled Disclosure of Cellular Telephone and Internet Records and Fraud Committed Through Telephone Solicitation. P.A. 16-148 was the product of discussions between the Division of Criminal Justice and other parties concerned with the disclosure of cell phone records. It must be noted that the public act deals only with call record information such as times when calls were made or the locations from which they were made, and not the actual content of a text message or phone call.

The largely technical change in section 4 of this year’s bill was drafted after consultation with the Judicial Branch. It clarifies that the notice to the subscriber whose information has been obtained pursuant to an ex parte order must be filed with the clerk of the court where any prosecution would be instituted as opposed to the jurisdiction where the ex parte order was signed. This will allow the Judicial Branch to match up the ex parte order with any subsequent criminal case if criminal charges are, in fact, filed.

The second change in H.B. No. 7256 is to correct an oversight in last year’s public act. While the public act allows the ex parte order itself to be sealed it does not authorize the sealing of the return or the inventory listing any information that has been obtained as a result of the issuance of the ex parte order. It makes no sense to say that the party cannot see the order but can see what law enforcement has obtained in response to that order.

SECTION 5 of H.B. No. 7256 addresses an issue brought to the attention of the Division by prosecutors working both at the trial court level and in our Appellate Bureau. This section resolves an issue raised by our Supreme Court in its decision in State v. Apt, 319 Conn. 494 (2015). In Apt, our Supreme Court held that a defendant who commits a crime while released on bond in another case is subject to a sentence enhancement under Section 53a-40b, which allows the court to impose an additional term of imprisonment of up to one year for a misdemeanor committed while on pretrial release or up to ten years if the crime is a felony, even if the crimes for which he was on release are dismissed prior to the disposition of the later crime. The court also ruled, however, that the criminal erasure statutes prohibit the state from using records of dismissed charges to establish that the defendant was, in fact, on release. The effect of the Court’s ruling is that while the state may seek a sentence enhancement in the circumstances described above, in many cases, it may effectively be deprived of the means of proving the most basic of facts, that the defendant was released on bond. Section 5 of H.B. No. 7256 proposes a reasonable and necessary exemption to the erasure of criminal records statute. The use of the erased records would only be for the specific purpose described in the bill.

In conclusion, the Division respectfully requests and recommends the Committee’s JOINT FAVORABLE SUBSTITUTE Report for H.B. No. 7256, correcting the apparent scrivener’s error in Section 1. We thank the Committee for affording this opportunity to provide input on this matter and would be happy to provide any additional information the Committee might require or to answer any questions that you might have.



Content Last Modified on 3/15/2017 9:18:37 AM