Op-ed: Unless Senate acts now, years of litigation loom for Connecticut

Justice David Borden

The Senate has before it a bill (HB 5221) that would bring Connecticut law into compliance with U.S. Supreme Court decisions, avoid years of expensive and unpredictable litigation and provide certainty for victims. The House passed this bill almost a month ago overwhelmingly. Last year, the House passed a similar bill with bipartisan support, and the Senate let it die without a vote. The Senate should not let this commonsense and necessary legislation wither and die again.

Current Connecticut law is not in compliance with recent U.S. Supreme Court decisions, which place limits on lengthy sentence for juveniles. The Connecticut Sentencing Commission — a nonpartisan body that includes judges, prosecutors, the victim’s advocate, parole board chair, correction and mental health commissioners, defense counsel and citizen members appointed by legislative leaders — has studied the problem for almost three years, holding public hearings and seeking the views of victims’ and offenders’ families.

More than 250 people in Connecticut are now serving long adult prison sentences for crimes that occurred when they were young teenagers. Approximately 50 of them are serving sentences of 50 years or more for crimes committed under 18; most are ineligible for parole. Often these cases involved kids acting impulsively under pressure from older peers or adults. Some cases involve clear intent to do harm; others do not. Some individuals have demonstrated extraordinary rehabilitation — serving as prison hospice volunteers and peer mentors. Others have not taken advantage of opportunities in prison. Each case is different.

No doubt, some of these sentences are justified, but under the U.S. Supreme Court’s recent jurisprudence, we must take a second look to be sure that we are in compliance with our Constitution. While we could wait for these cases to drag through the courts in years of litigation, the Sentencing Commission determined that allowing a second look through the parole board would be safer for our communities, fairer to victims, more consistent across cases and would give as much balance and certainty in these situations as possible after the Supreme Court’s rulings.

There are already approximately 70 cases pending in Connecticut courts brought by inmates challenging their sentences under the U.S. Supreme Court decisions. If the legislature does not act, many more inmates will file challenges in the courts.

Without HB 5221, each judge will individually determine how to comply with the U.S. Supreme Court decisions, and there may be wildly disparate results across the state. It could take our Connecticut Supreme Court years to resolve all of these cases — years of uncertainty for victims, prosecutors, judges, defense lawyers and juvenile offenders. The suffering of victims and their families is unspeakable. The Commission made certain that victims will have plenty of notice of these changes and will be able to decide individually the extent to which they would like to participate, instead of being required to re-experience a court process.

HB 5221 provides a balanced, predictable system for handling these serious juvenile cases. The bill does not reduce sentences or guarantee release. Juveniles would get the chance for a hearing before the parole board after serving 60 percent of the sentence, or 12 years, whichever is longer. For example, a 15-year-old who received a sentence of 50 years would be eligible for parole after she had served 30 years of her sentence. Those sentenced to more than 50 years would be eligible after 30 years. The parole board would apply more stringent standards than in ordinary adult cases, use scientific risk assessment tools and receive input from the victim, prosecutor, inmate, Department of Correction and experts. The bill also provides a much-needed mechanism for supervising inmates who are released into communities after serving long sentences. Under current law, juveniles convicted of certain serious crimes are not eligible for parole. At the end of their sentences, they are simply released into communities unsupervised.

Some other states have responded to the U.S. Supreme Court decisions by requiring parole eligibility for juveniles substantially earlier than HB 5221 provides.  Massachusetts’ Supreme Judicial Court ruled that individuals convicted of first-degree murder and sentenced to life-without-parole are now eligible for parole after 15 years.  West Virginia just passed a bill requiring parole eligibility for juveniles after no more than 15 years. In contrast, juveniles could wait up to 30 years before being eligible for parole under HB 5221.

The Senate should pass this measured response and avoid costly and unpredictable litigation in our courts.

David M. Borden, a former Justice of the Connecticut Supreme Court, Chairs the Connecticut Sentencing Commission. The Connecticut Sentencing Commission may be reached by contacting Andrew Clark, Acting Executive Director, at clarkanj@mail.ccsu.edu