Could Connecticut's 1990 parole law cover people already incarcerated or in community release?

Plain-English summary

A 1990 Connecticut act expanded parole consideration for some felony prisoners incarcerated “on or after October 1, 1990.” The Board of Parole asked whether that covered people whose sentences began earlier but who were still incarcerated on that date. It also asked whether inmates serving portions of their sentences in community release or supervised home release still counted as incarcerated. The Attorney General answered yes to both questions, subject to the act's other eligibility conditions.

The opinion read “incarcerated on or after” to include continued incarceration, not just sentences that commenced on the effective date. It drew support from a separate statutory exclusion tied to crimes committed as far back as July 1981; that lookback would make little sense if only newly incarcerated people could qualify. The opinion also said the provision did not impose a new obligation of the kind targeted by Connecticut's presumption against retroactivity.

Transfer to a community program did not end the person's status in the Department of Correction's custody. The opinion cited a Connecticut Supreme Court decision distinguishing supervised home release from parole because the department retained legal supervision. Such inmates therefore remained eligible for parole consideration under the act. The opinion addressed access to consideration, while the statute left release to the parole panel's discretion.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For people imprisoned before October 1990: The opinion said they were within the act's time frame if still incarcerated on or after its effective date and otherwise eligible. It did not treat the start date of incarceration as the cutoff.

For community release participants: The opinion treated transfers under the cited correction statute as continuing incarceration under Department of Correction jurisdiction. That allowed parole consideration despite placement outside a traditional prison.

For the parole board: The opinion distinguished eligibility to be considered from a right to be released. The board panel retained the discretion described in the statute, and the act's exclusions and other criteria still mattered.

Common questions

Did the parole law apply only to people whose imprisonment began after October 1, 1990?

No. The Attorney General said a person already imprisoned but still incarcerated on that date fell within “on or after,” assuming the other statutory criteria were met.

Did supervised home release make someone ineligible for parole consideration?

No. The opinion said the transferred inmate remained under the Department of Correction's jurisdiction and was still incarcerated for this statute.

Did the opinion order parole for anyone in those groups?

No. It concerned eligibility for the board to consider parole. The quoted act made release discretionary and included additional conditions and exclusions.

Why did the opinion consider an earlier offense date in interpreting the law?

A separate exclusion reached some offenses committed on or after July 1, 1981. The opinion reasoned that this lookback would be unnecessary if the new provision covered only people first incarcerated in October 1990 or later.

Background and statutory framework

P.A. 90-261, Sec. 5, addressed a felony prisoner with a definite sentence of more than one year who had served at least half that sentence, while preserving the parole panel's discretion and other statutory conditions. The Board's questions concerned the word “incarcerated.” Conn. Gen. Stat. e 18-100 let the correction commissioner transfer inmates to community facilities while retaining jurisdiction. The opinion relied on Asherman v. Meachum for the legal distinction between supervised home release and parole.

Citations and references

The opinion interprets P.A. 90-261, Sec. 5, and discusses Conn. Gen. Stat. e 55-3 and e 18-100. It cites Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984), on retrospective statutes, and Asherman v. Meachum, 213 Conn. 38, 566 A.2d 663, (1989), on community release status. The official HTML renders some section symbols as “e”; the original text below preserves that rendering.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1990-formal-opinions/mr-henry-a-bissonnette-jr-chairman-board-of-parole-1990032-formal-opinion-attorney-general-of-connec

Original opinion text

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.)