Could Connecticut's parole board or Department of Correction release an inmate before the inmate finished a court-ordered mandatory minimum sentence?

Formal Opinion 2014-1: Executive-branch release authority and mandatory minimum sentences

Plain-English summary

State Victim Advocate Garvin Ambrose asked the Attorney General whether Connecticut's Board of Pardons and Paroles could grant parole, and whether the Commissioner of Correction could grant supervised release, to inmates whose convictions carried a mandatory minimum sentence, before the inmate finished serving that minimum in a penal institution. AG Jepsen answered generally yes. The opinion drew a careful distinction between two phrasings the legislature uses for mandatory minimums. Most statutes say a sentence "may not be suspended or reduced by the court," which limits only the court. A smaller class (mainly DUI and a few weapons and drug-to-minor statutes) say the sentence "may not be suspended or reduced in any manner," which extends the limit to the Board and Commissioner as well. The AG read the difference as deliberate. In addition, when the legislature wanted to limit Department of Correction credits specifically, it did so expressly (Conn. Gen. Stat. § 18-98e(d)). Without express language reaching the executive branch, the AG declined to imply such a limit. The opinion also noted that Public Act 99-196 had repealed a former § 54-125a(b)(3) provision that had explicitly tied parole eligibility to mandatory minimum service, which the AG read as further evidence the legislature did not want to impose a categorical bar on executive-branch release.

Currency note

This opinion was issued in 2014. 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.

Background and statutory framework

The Board of Pardons and Paroles draws its parole authority from Conn. Gen. Stat. § 54-125a. Subsection (a) sets the general rule: an inmate sentenced to more than two years who has served at least half of the sentence (less risk reduction credit under § 18-98e) may be paroled in the Board's discretion. Subsection (b) carves out exceptions: certain serious felonies (capital felony, murder with special circumstances, felony murder, arson murder, murder, aggravated sexual assault in the first degree) make the inmate ineligible altogether; home invasion, second-degree burglary, and physical-force offenses require service of at least 85% of the sentence.

Before 1999, § 54-125a(b)(3) added a separate rule: a person convicted of any other offense with a mandatory minimum that could not be "suspended or reduced by the court" had to serve the mandatory minimum or 50% of the sentence, whichever was greater. Public Act 99-196 repealed that subsection, after legislators discovered that the interaction with subsection (b)(2) was producing perverse results in which inmates with mandatory minimums could become parole-eligible earlier than inmates without them.

Department of Correction supervised release runs through Conn. Gen. Stat. § 18-100c (transfer to halfway house, group home, mental health facility, or other approved community correction program for inmates with sentences of two years or less who have served half the sentence). Asherman v. Meachum (Conn. 1989) had already established that a § 18-100c transfer is not a reduction of sentence, since the inmate remains under DOC jurisdiction and continues to serve the sentence.

What the AG concluded at the time

Two distinct phrasings, two different scopes

The opinion's central analytical move was distinguishing two formulations. The phrase "may not be suspended or reduced by the court" appeared in most mandatory-minimum statutes (e.g., § 53a-55a, § 53a-59, § 53a-92a, § 53a-101). On its face, the AG read it as binding the court alone.

The phrase "may not be suspended or reduced in any manner" appeared in a smaller set: DUI under § 14-227a(g); driving on a suspended license under § 14-215(b)-(c); and a handful of other statutes. The AG read "in any manner" to reach beyond the court to the Board and the Commissioner.

A third group (§ 21a-278a sale of drugs to minors; § 53-202b sale or transfer of assault weapon; § 53-202c possession of assault weapon; § 53-202l felony with assault weapon; § 53a-136a carjacking) used neither qualifier, leaving the scope ambiguous.

Plourde v. Liburdi controlled the interpretation

The Connecticut Supreme Court had addressed the same distinction in Plourde v. Liburdi, 207 Conn. 412 (1998). Plourde dealt with whether good-time and employment credits administered by the DOC could reduce a § 14-227a mandatory minimum that "may not be suspended or reduced in any manner." The Court contrasted "in any manner" with "by the court," holding that the legislature's choice of different language reflected a different intent. "In any manner" precluded any authority to reduce the sentence, including the Commissioner's. The AG applied the same construction to the parole and release contexts at issue here.

Express limits on the Commissioner reinforce the negative implication

When the legislature wanted to limit DOC credits with respect to mandatory minimums, it did so expressly. Conn. Gen. Stat. § 18-98e(d), enacted in Public Act 11-51, said: "[i]n no event shall any credit earned under this section be applied by the [C]ommissioner so as to reduce a mandatory minimum term of imprisonment such inmate is required to serve by statute." Similar express language was absent from the other release and credit statutes (§§ 18-7, 18-7a, 18-98a, 18-98b, 18-100, 18-100c). Reading the express limit into the silent statutes, the AG concluded, would violate the canon that the legislature is presumed to know how to express different intentions and that courts will not supply language the legislature omitted (citing Marchesi, State v. Ward, In re Justice W., Tine, and Chaterjee).

The 1999 repeal cut against an implied bar

Former § 54-125a(b)(3) had imposed a categorical mandatory-minimum-must-be-served rule for parole. The legislature repealed it in 1999 because of unintended consequences. The AG quoted Senator Williams' floor statement explaining the example: a Class D felon with a one-year mandatory minimum who got the maximum five-year sentence could become parole-eligible at 50% of five years (2.5 years), while a similarly situated person under (b)(2) could not become eligible until 85%. Rather than fix the unintended interaction, the legislature chose to delete (b)(3) entirely. The AG read that as legislative intent to leave executive-branch release authority unencumbered by mandatory-minimum service requirements except where (b)(2) or "in any manner" language applied.

Halfway-house transfers are not reductions

The opinion separately reminded readers that under Asherman v. Meachum, a § 18-100c transfer to a halfway house, group home, or community program is not a reduction or suspension of sentence. The inmate remains under DOC jurisdiction and continues to serve the sentence. So even where a mandatory minimum applied, transfer would not violate it.

Common questions

Did the AG say the Commissioner could always release someone before the mandatory minimum was served?

No. The AG identified DUI under § 14-227a, second/subsequent driving-on-suspended-license under § 14-215(b)-(c), and the express § 18-98e(d) credit limit as places where the Commissioner's authority was capped. Outside those categories, the AG concluded the Commissioner's authority was not limited beyond the general parameters of § 18-100c.

What about offenses where the statute is silent on whether the limit is "by the court" or "in any manner"?

The opinion noted those statutes (§ 21a-278a, § 53-202b, § 53-202c, § 53-202l, § 53a-136a) but did not classify them definitively. It implied a court-by-court analysis of legislative history and purpose would be needed.

Could the legislature change the result?

Yes. The opinion expressly said so. If the elimination of subsection (b)(3) led to consequences the legislature found unacceptable, "it can change the law, as it chose to do in 1999."

Did the AG opine on whether the policy of early release was good or bad?

No. The opinion was emphatic that judgments about mandatory minimums and early release are policy questions for the legislature. The AG said his job was only to "divine what policy the legislature has in fact enacted."

Citations

• Conn. Gen. Stat. § 54-125a — parole eligibility framework after 1999 repeal of subsection (b)(3).
• Conn. Gen. Stat. § 18-98e(d) — express bar on applying risk-reduction credits to reduce a mandatory minimum.
• Conn. Gen. Stat. § 18-100c — DOC supervised-release authority.
• Conn. Gen. Stat. § 14-227a(g) — DUI mandatory minimum that "may not be suspended or reduced in any manner."
• Public Act 99-196 — repealed former § 54-125a(b)(3) mandatory-minimum parole bar.
• Plourde v. Liburdi, 207 Conn. 412 (1998) — controlling Connecticut Supreme Court construction of "in any manner" versus "by the court."
• Asherman v. Meachum, 213 Conn. 38 (1989) — § 18-100c transfer is not a sentence reduction.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2014/2014-001_ambrose-opinion_201401271531-pdf.pdf?rev=3fd477758e3146719e46874ab8ac2072

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

GEORGE C. JEPSEN
ATTORNEY GENERAL

Office of The Attorney General
State of Connecticut

January 27, 2014

Garvin G. Ambrose, Esq.
State Victim Advocate
505 Hudson Street 5th floor
Hartford, CT 06106

Dear Attorney Ambrose:

You have requested an opinion regarding the authority of the Board of Pardons and Paroles (Board) to grant parole release and the Commissioner of Correction (Commissioner) to grant supervised release to persons, whose convictions include a mandatory minimum sentence of incarceration, prior to the completion of the minimum mandatory sentence in a penal institution. The question you pose is rather general. You do not inquire about a particular set of facts under a particular statute involving a mandatory minimum sentence. We therefore answer your question generally, providing advice on what we believe are the appropriate legislative guideposts. This is an important caveat to underscore because neither the sentencing statutes nor the relevant statutory release mechanisms are drafted identically. Some were passed at different times and in some cases exceptions have been enacted that might create some uncertainty. It is possible, therefore, that certain statutes or factual circumstances might yield a different result in light of relevant statutory canons of interpretation.

Further, our conclusions should not be construed as embracing or criticizing either the legislature's enactment of mandatory minimum sentences or the policy of early release of sentenced inmates through parole or transitional programs. These questions of public policy are for the legislature to pass upon and for the executive agencies to implement. We can only do our best to divine what policy the legislature has in fact enacted. Okeke v. Commissioner of Public Health, 304 Conn. 317, 329 (2012).

Using the available tools of statutory construction, we conclude that, as a general proposition, where the legislature has intended to limit the release of a person whose conviction includes a mandatory minimum sentence or to prohibit the reduction of such a sentence, it has used express language to that effect. For example, certain statutes, principally related to operating a vehicle under the influence, expressly preclude reducing a mandatory minimum sentence in any manner, which would include by the Board or the Commissioner. E.g., Conn. Gen. Stat. § 14-227a. Similarly, Conn. Gen. Stat. § 18-98e expressly limits the authority of the Commissioner in applying earned risk reduction credits so as not to permit a reduction in a mandatory minimum sentence. In the absence of such express language, we conclude that a limitation as to their authority should not be implied.

Mandatory Minimum Sentences

The legislature has provided mandatory minimum sentences for a wide variety of crimes. The language the legislature has chosen to create mandatory minimum sentences, however, varies somewhat for different criminal offenses. Generally, most statutes establishing mandatory minimum sentences do not in fact use that phrase, but rather use language restricting the authority to reduce or suspend a sentence. For example, most statutes providing for mandatory minimum sentences indicate that some period of the sentence imposed "may not be suspended or reduced by the court" (emphasis added). E.g., Conn. Gen. Stat. § 53a-55a (manslaughter in first degree with firearm); § 53a-59 (assault in first degree); § 53a-92a (kidnapping in first degree with firearm); § 53a-101 (burglary in first degree). A smaller number of statutes involving operating a vehicle under the influence and other motor vehicle offenses state that some portion of the sentence imposed "may not be suspended or reduced in any manner." (emphasis added). E.g., Conn. Gen. Stat. § 14-227a(g) (operating while under influence); § 14-215(b), (c) (operating with revoked or suspended license). Another small number of statutes provide only that some period of the sentence shall not be suspended or reduced without the reference "by the court" or "in any manner." E.g., Conn. Gen. Stat. § 21a-278a (sale of drugs to minors); § 53-202b (sale or transfer of assault weapon); § 53-202c (possession of assault weapon); § 53-202l (felony with an assault weapon); § 53a-136a (carjacking).

The use of the different language can be significant. In Plourde v. Liburdi, 207 Conn. 412 (1998), the Supreme Court addressed whether statutory good time and employment credits, administered by the Commissioner under Conn. Gen. Stat. §§ 18-7a and 18-98a, applied to reduce a mandatory minimum sentence under Conn. Gen. Stat. § 14-227a. At the time, § 14-227a, which prohibits operating a motor vehicle while under the influence, provided that, upon a third violation, the court must impose a mandatory minimum sentence of 120 days, "which may not be suspended or reduced in any manner." 207 Conn. at 415. The Court contrasted the language used in § 14-227a — "in any manner" — with language used in other statutes with mandatory minimum sentences that provided that the mandatory minimum could not be suspended or reduced "by the court." The Court concluded that the legislature's choice of different language reflected a different intent. The choice to use the phrase "in any manner" indicated an intent to preclude any authority to reduce what the Supreme Court itself referred to as a "mandatory minimum sentence." Id. at 416-17.

Thus, where the legislature has intended to limit all authority — a court's, the Board's and the Commissioner's — it has expressed that intent through the use of the phrase "in any manner." The legislature is presumed to have intended to create a harmonious and consistent body of law, and statutes relating to the same subject matter must therefore be read together. In re Justice W., 308 Conn. 652, 663 (2013). Moreover, where the legislature uses one set of words in one place, and another set of words in another place, the legislature has demonstrated that it knows how to express different intentions. Tine v. Zoning Bd. of Appeals, 308 Conn. 300, 308 (2013); Southington '84 Assocs. v. Silver Dollar Stores, Inc., 237 Conn. 758, 767-68 (1996); Plourde, 207 Conn. at 416. Where the context demonstrates that the legislature knew how to convey its intent expressly, the failure to do so implies the legislature did not intend to include the absent language. Marchesi v. Board of Selectmen, 309 Conn. 608, 618 (2013). A court will not supply language that the legislature has omitted and will not impute an intent that is not apparent from the language the legislature has chosen to use where the legislature could have easily provided that language. State v. Ward, 306 Conn. 698, 710 (2012). In the absence of the phrase "in any manner" or some similar language to evidence an intent to limit the Board's and the Commissioner's authority — and not just a court's authority — we will not read into the statutory language such an intent.

As a general proposition, therefore, we conclude that only those statutes establishing mandatory minimum sentences using the phrase "in any manner" — or some similar language — impose a limit on the authority of the Board or the Commissioner.

Authority of the Board of Pardons and Paroles

The Board's authority to release on parole is set forth in Conn. Gen. Stat. § 54-125a. Under subsection (a) of § 54-125a, the general rule is that a person incarcerated under a sentence of more than two years and who has served not less than one-half of the sentence (less any risk reduction credit) may be eligible for release on parole. Subsection (b) creates certain exceptions. First, a person convicted of certain specified crimes, such as murder, is ineligible for parole altogether. Conn. Gen. Stat. § 54-125a(b)(1). Second, under subsection (b)(2), a person convicted of the crimes of home invasion (§ 53a-100aa) or burglary in second degree (§ 53a-102) or of crimes involving use or attempted or threatened use of physical force is ineligible for parole until 85 percent of the sentence (less any risk reduction credit) has been served. Conn. Gen. Stat. § 54-125a(b)(2).

It is especially illuminating to our search for the legislature's intent that prior to 1999 § 54-125a(b) included an additional provision concerning mandatory minimum sentences. Specifically, former subsection (b)(3) of § 54-125a provided:

(3) No person convicted of any other offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court shall be eligible for parole under subsection (a) of this section until such person has served such mandatory minimum sentence or fifty per cent of the definite sentence imposed, whichever is greater.

Conn. Gen. Stat. § 54-125a(b)(3) (Rev. to 1999) (emphasis added). That subsection, however, was eliminated by Public Act No. 99-196.

By amending § 54-125a to remove the specific provision relating to mandatory minimum sentences, the legislature manifested an intent that the Board exercise its authority to grant release on parole without regard to whether a mandatory minimum sentence had been completed. Since the passage of Public Act No. 99-196, the remaining provisions of subsections (a) and (b) have governed the Board's discretion to grant release. "When the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose." Chaterjee v. Comm'r of Revenue Services, 277 Conn. 681, 693 (2006). If the legislature had wanted to ensure that a person convicted of a crime for which there was a mandatory minimum sentence would not be eligible for parole until the mandatory minimum was served, it could easily have done so. Instead, it effectively did just the opposite, by eliminating the prior provision that did impose special requirements for mandatory minimum sentences.

The legislative history of Public Act No. 99-196 reveals that the prior provision relating to mandatory minimum sentences was repealed because of unintended consequences in the application of former subsection (b)(3) and subsection (b)(2) that could have allowed for a person with a mandatory minimum sentence to be eligible for parole earlier than a person without a mandatory minimum sentence. Rather than amend § 54-125a in some way to avoid these unintended consequences, but yet retain a requirement that the mandatory minimum sentence be served before a person becomes eligible for parole, the legislature simply chose to eliminate subsection (b)(3) and to allow the remaining provisions of the statute to control. 42 Sen. Proc. 2722-24 (June 2, 1999).

Of course if the elimination of subsection (b)(3) has led, in the legislature's judgment, to other unintended consequences, such as the eligibility for parole of a class of offenders the legislature wishes not to make eligible, it can change the law, as it chose to do in 1999. However, in light of the statutory language of § 54-125a and the legislative amendments that led to that present language, we conclude that the Board's authority to grant parole release is not limited beyond those statutes imposing mandatory minimum sentences using the phrase "in any manner."

Authority of the Commissioner of Correction

Under Conn. Gen. Stat. § 18-100c, the Commissioner has authority to release to a halfway house, group home, mental health facility or other approved community correction program, a person serving a sentence of two years or less who has served in prison not less than one-half of the sentence, less applicable statutory credits earned. First, it is important to recognize that release to a halfway house or the like under § 18-100c does not under Connecticut law constitute a reduction or suspension of a person's sentence. A person released under this statute remains under the jurisdiction and supervision of the Commissioner and continues to serve his or her sentence. Conn. Gen. Stat. §§ 18-100(e), 18-100c, 18-100d; see Asherman v. Meachum, 213 Conn. 38, 48-49 (1989).

Significantly, where the legislature has wanted to limit the Commissioner's authority with regard to mandatory minimum sentences, it has used language that has made apparent that intent. As discussed above, the legislature has evidenced an intent to limit all authority, including the Commissioner's, when it uses the phrase "in any manner" when establishing a mandatory minimum sentence. Plourde, 207 Conn. at 416. Moreover, when the legislature enacted Public Act No. 11-51 providing for risk reduction credits for persons convicted after October 1, 1997, it expressly directed that "[i]n no event shall any credit earned under this section be applied by the [C]ommissioner so as to reduce a mandatory minimum term of imprisonment such inmate is required to serve by statute." Conn. Gen. Stat. § 18-98e(d) (emphasis added). Similar language is absent from other statutes relating to the Commissioner's authority to commute, diminish, reduce or deduct from a sentence, or to transfer an inmate to a different institution or a halfway house, group home or residential program. See Conn. Gen. Stat. §§ 18-7, 18-7a, 18-98a, 18-98b, 18-100, 18-100c. The legislature's use of express language to limit the Commissioner's authority reinforces our conclusion that, in the absence of such express language, an unexpressed intention to limit the Commissioner's authority should not be implied. Marchesi, 309 Conn. at 618.

Therefore, we conclude that the Commissioner's authority to release or to reduce a sentence is limited only in those circumstances where the legislature has expressly provided for such a limitation. If the legislature disagrees with the way the Commissioner has interpreted or administered these programs, it is free to change the pertinent statutes.

We trust this is responsive to your request.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL

c. The Honorable James Dzurenda
The Honorable Erica Tindall