Free Reply to Response to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT WILLIAM CONNELLY V. THERESA C. LANTZ, COMMISSIONER OF CORRECTION : : : : : : CIV. NO. 3:00CV720(JCH)

SEPTEMBER 25, 2007

DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT I. Statutory Community Release Opportunities Have Increased This case presents an academic ex post facto question which, in reality, affords plaintiff no present remedy. Even if, arguendo, the court were to issue a declaratory ruling that the elimination of the state's 1989 Supervised Home Release (SHR) program constitutes a violation of the ex post facto clause, such a ruling would not help plaintiff. The Commissioner is not compelled to exercise her discretion with regard to any offender, and could not place plaintiff in a program which no longer exists. The defendant respectfully claims the court lacks jurisdiction to compel the Commissioner to exercise her discretion under state law because the plaintiff's claim for injunctive relief seeks "nonparole" eligibility under a now repealed statute, Conn. Gen. Stat. §18-100(e) (rev'd 1989). Even if technically "eligible" there is no right to be considered or released, under either the 1989 revision or the present 2007 revision. Thus the Court is without power to order any practical relief. See Wylie v. Warden, 33 Conn. App. 902, 903, 632 A.2d 1133 (1993). The program which the plaintiff seeks has been abolished both by law and in fact, and cannot now be granted. See Bronx Household of Faith v. Bd. of Educ. 492 F.3d 89 (2nd Cir. 2007)(discussing avoiding advisory opinions, constitutional questions and dismissing constitutional question as prudentially unripe). However, plaintiff's own submission in opposition to summary judgment amply demonstrates that plaintiff is not disadvantaged by the statutory changes that have been made. Contrary to the assertion Mr. Connelly makes in his memorandum at pp. 1-2, that the statutory changes to Conn.

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Gen. Stat. §18-100(e), "retrospectively increases the amount of time he must serve,..." the present statutory provisions of Conn. Gen. Stat. §18-100(e)(rev'd 2007), as amended by Public Act 04-234, have restored the Commissioner's discretionary authority to transfer offenders "to any approved community or private residence." This transfer authority is preconditioned on the offender first being transferred to a halfway house, and placement in "any approved community or private residence" must be preceded by "satisfactory participation in a residential program." See Conn. Gen. Stat, §18100(e) (Rev'd 2007)(attached as Exh. D to Plaintiff's Opposition Memorandum ("Pl. Opp. Mem.")).1 Thus, in effect, a present day version of SHR has been reinstituted. This program is now called "Transitional Placement." See Administrative Directive 11.2 (effective 7-1-2006)(copy attached).2 Since the Commissioner now, after P.A. 04-234, has discretion to place plaintiff in "any approved community or private residence," discretion that the Commissioner similarly had in 1989 to transfer offenders to a "public or private nonprofit halfway house," it can not be found, as a matter of law, that plaintiff's sentence has been increased or that the legislature has enacted a statutory amendment that allegedly "retrospectively increases the amount of time plaintiff must serve." Pl. Opp. Mem. 1-2. Indeed, in addition to possible transfer to a halfway house, or transitional placement, plaintiff also benefits from the legislature's reinstitution of parole in P.A. 90-261, now codified in Conn. Gen.

Conn. Gen. Stat. §18-100(e)(rev'd 2007) states: "If the Commissioner of Correction deems that the purposes of this section may thus be more effectively carried out, the commissioner 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, after satisfactory participation in a residential program, to any approved community or private residence. Any inmate so transferred shall remain under the jurisdiction of said commissioner. " (emphasis added) The Department of Correction (DOC) Administrative Directives are published on the internet website of the DOC. See http://www.ct.gov/doc/LIB/doc/PDF/AD/ad1102.pdf. These directives were available to plaintiff's prior counsel of record and are available to plaintiff at the Enfield Correctional Institution. This court has routinely taken judicial notice of DOC Administrative Directives. Gonzalez v. Lantz, 3:03-cv-2264 (SRU)(WIG) 2005 U.S. Dist. LEXIS 14702, (D.Conn. July 20, 2005). DOC Administrative Directives are matters of public record or official pronouncements that warrant the court taking judicial notice. See, e.g. Christman v. Skinner, 468 F.2d 723, 726 (2d Cir. 1972)(proper for trial court to take judicial notice of state prison regulations).
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Stat. §54-125a. Thus, plaintiff now has at least two possible statutory avenues of community release, release by the Commissioner under her discretionary authority of §18-100(e), as well as discretionary parole release by the Board of Pardons and Paroles under §54-125a(a), after service of one half of the sentence. There is no dispute between the parties, and Mr. Connelly correctly asserts that there are "two coexisting schemes for release." Pl. Rule 56(a)(2) Stmt. At 4, ¶9. Indeed, Mr. Connelly's entire opposition is premised on his flawed assertion that he is allegedly "disadvantaged" by reduced statutory opportunities to shorten his time in prison, when in fact, P.A. 04-234 greatly increased statutory opportunities to be released from prison early. Indeed, another so-called "early release" mechanism of P.A. 04-234, §§2, 9, now codified at Conn. Gen. Stat. §54-125h,3 provides that the Chairperson of the Board of Pardons and Paroles may, eighteen months prior to the Voted to Parole (VTP) date, transfer an offender to either a halfway house, group home, mental health facility, or to "an approved community or private residence." Thus, in Mr. Connelly's case, who has a parole eligibility date of November 13, 2009, there is a statute which provides an opportunity for release on what is now commonly called "transfer parole" pursuant to §54-125h eighteen months prior to the 50% date, or by May 13, 2008. After P.A. 04-234, and at present, there are greater statutory opportunities for release to the community than existed in 1989. Indeed, the statutory opportunities for release for Mr. Connelly now
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Conn. Gen. Stat. §54-125h provides: Transfer of prisoner granted parole and nearing parole release date.

Notwithstanding the provisions of section 54-125a, the chairperson of the Board of Pardons and Paroles may transfer to any public or private nonprofit halfway house, group home or mental health facility or to an approved community or private residence any person confined in a correctional institution or facility who has been granted parole release and is within eighteen months of the parole release date established by the board. Any person released from confinement pursuant to this section shall be transferred to the jurisdiction of the chairperson of the Board of Pardons and Paroles. Such person shall remain in the custody of the Commissioner of Correction during the period of such release and employees of the Department of Correction shall be responsible for the supervision of such person while such person is residing at such halfway house, group home, mental health facility or community or private residence. Such person may, at any time, be returned to confinement in a correctional facility. HISTORY: ( P.A. 04-234, S. 2, 9.)

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provide that he might be released earlier than he would have been under the statutory and administrative scheme in place in 1989, which in 1989 required an offender to be within 36 months of end of sentence. Because 50% parole eligibility gives plaintiff an opportunity for release which did not exist in 1989, and further, because the Commissioner has discretion to place Mr. Connelly in a halfway house, an opportunity he appears to desire and for which the parties agree he may be eligible at some point in his present sentence, ( See Pl. Stmt. of "Disputed Issues of Fact" at 2, ¶3), he cannot demonstrate he is "disadvantaged" within the meaning of the ex post facto clause as a matter of law. Certainly his sentence has not been lengthened, and remains constant at 40 years. Accordingly, defendant's summary judgment motion should be granted. II. Ex Post Facto Does Not Apply To DOC Policies or Use of Discretion, But Only To Penal Statutes Plaintiff's primary argument comes down to his dissatisfaction with present discretionary DOC policies which require that an inmate be within 18 months of "End of Sentence" (EOS) or within 18 months of the VTP date to be eligible for transfer to a halfway house.4 See Pl. Exhibit I, Classification Review Sheet, 8/17/06. Plaintiff asserts, and the evidence shows, that previous classification guidelines allowed for release to SHR if the inmate was within 36 months of end of sentence. Plaintiff additionally argues that since the 36 month criteria appears nowhere in the statute, the Commissioner has discretion to waive such time criteria, and "override" the written classification guidelines.5 The defendants do not disagree, and this does not present a question of material fact in

There is repetitive and duplicate authority for transfer to a halfway house 18 months prior to the VTP date. See DOC Admin. Dir. 9.2 (eff. 7/1/2006); http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0902.pdf (copy attached), at p. 8 of 14, ¶11.B.1. which states, in part, "Residential Program Placement.1. Eligibility Criteria. An inmate may be eligible for transfer to a residential work or education program when the following criteria are met: a. Be classified level 2 or 3; b. Be within 18 months of estimated discharge date or Voted to Parole date... An "override" is defined as "A documented condition of fact warranting an increase or decrease in the overall risk level of an inmate." Admin. Dir. 9.2, at 2 of 14, ¶3.E. The present classification directive however does not allow overrides to community release, stating, "No inmate shall be overridden to level 1." Admin. Dir. 9.2 at 4 of 14, ¶8.D.
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dispute. Indeed, under present statutory criteria, there is no time frame in Conn. Gen. Stat. §18-100(e) for possible transfer to a halfway house. Thus, the question really boils down to whether the decision of the Commissioner to establish uniform guidelines in Admin. Dir. 9.2 for the exercise of such discretion only when the inmate is within 18 months of EOS or VTP dates, is an ex post facto violation. For the reasons discussed below, policy guidelines and written directives of the DOC are not penal statutes within the meaning of the ex post facto clause, and thus plaintiff's ex post facto challenge must fail.6 In Doe v. Simon, 221 F.3d 137, 139 (2nd Cir. 2000) the Second Circuit rejected the notion that conditional release is the equivalent of parole, stating, "We are unwilling to import wholesale the due process requirements for parole rescissions into the admittedly different arena of conditional release." In Doe, the inmate claimed that the requirement of having an approved residence prior to conditional release violated both the due process and ex post facto clauses. The Second Circuit rejected the notion that a "policy" is a penal statute and affirmed the District Court's grant of summary judgment concluding that "the Division of Parole's sex offender policy did not constitute a law prohibited by the Ex Post Facto Clause." Doe's ex post facto argument was rejected without discussion and found to be without merit. Similarly here, classification guidelines for the management and utilization of bed space both within DOC facilities, as well as halfway houses and "approved community residences," are internal guidelines intended to promote public safety as well as the safe, secure and orderly management of the DOC's correctional facilities. They are not penal statutes which increase the plaintiff's 40 year sentence.
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Indeed, present discretionary policies after the triple homicide of members of the Petit family in Cheshire have stringently limited the present exercise of discretion, and in view of plaintiff's violent criminal history, would make it extremely unlikely that plaintiff would be considered for any type of community release program at this time. The legitimate exercise of discretion allowed under state law to protect public safety is not subject to scrutiny under the ex post facto clause. Ex Post Facto does not apply to discretionary policies intended to protect the general public from violent offenders. California Dept. of Corrections v. Morales, 514 U.S. 499, 508 (1995) nor does it permit this Court to micromanage these difficult public safety questions.

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While Court decisions considering the reduction in opportunities for parole have raised ex post facto questions, questions concerning internal DOC discretionary policies do not raise such ex post facto concerns. In Garner v. Jones, 529 U.S. 244, 252 (2000), the Supreme Court reiterated what it had said in California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) that, We also observed that the Ex Post Facto Clause should not be employed for "the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures." 514 U.S. at 508. These remain important concerns. The States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release. In this case, the legislature has provided plaintiff increased opportunities for release on parole; indeed, there are statutory opportunities that did not exist when plaintiff was sentenced. Decisions which consider the complete elimination of parole have raised ex post facto concerns, and the Supreme Court in Garner, 529 U.S. at 250, stated, "Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account." However, the question in this case is quite simple, because ex post facto does not apply to classification policies for education or work release programs, and how the Commissioner exercises her discretion under Conn. Gen. Stat. §18-100(e). The plaintiff's claim, as a matter of law, is without merit, especially when viewing the entire panoply of early release statutes devised by the Connecticut legislature and the ample, indeed redundant statutory release mechanisms available for the plaintiff.7 Moreover, ex post facto prohibitions do not apply to DOC directives which are internal policy guidelines for the classification of inmates. Barna v. Travis, 239 F.3d 169, 171 (2nd Cir. 2001)

Under Garner v. Jones, Mr. Connelly has the burden of demonstrating "by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." 529 U.S. 244, 255. In view of the additional statutory avenues for release, it is obvious that plaintiff's chances of release have increased. In 1989 parole did not even exist, and there was no parole release procedure for inmates serving 40 year sentences who had not yet completed half their sentence.

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It is well established that discretionary policies and guidelines are not laws within the meaning of the ex post facto clause. For example, the Ex Post Facto Clause does not apply to guidelines that do not create mandatory rules for release but are promulgated simply to guide the parole board in the exercise of its discretion. See, e.g., DiNapoli v. Northeast Regional Parole

Commission, 764 F.2d 143, 145-47 (2d Cir.), cert. denied, 474 U.S. 1020, 88 L. Ed. 2d 553, 106 S. Ct. 568 (1985). Such guidelines "are not 'laws' within the meaning of the ex post facto clause." 764 F.2d at 147; Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir. 1987) (quoting DiNapoli). In Shepard v. Taylor, 556 F.2d 648, 654(2d Cir. 1977), the Second Circuit stated that parole guidelines do not constitute impermissible ex post facto laws when applied to an adult offender since, in such an instance, they merely clarify the exercise of administrative discretion without altering any existing considerations for parole release. Here, community release programs under Conn. Gen. Stat. §18100(e) do not even rise to the level of parole, and create no constitutional right or entitlements of any kind. The Connecticut Appellate Court followed the Second Circuit's reasoning in Abed v. Commissioner of Correction, 43 Conn. App. 176, 182, 682 A.2d 558, 562 (1996) when it held that the DOC Admin. Dir. 6.14, which prohibits inmates from earning statutory good time when classified as a security risk group threat member was not an ex post facto law. The Appellate Court, relying on and citing to DiNapoli, stated that "There is nothing in directive 6.14 that attempts to criminalize an otherwise lawful act." Id. Further, the Appellate Court noted that the intent of the Administrative Directive was not to increase punishment, but rather to manage gang activities of inmates, stating, "The ex post facto clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with prison administration, safety, and efficiency. Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992)." Abed, 43 Conn. App. at 183. It is respectfully submitted

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that Admin. Dir. 9.2 which deals with Inmate Classification, and Admin. Dir. 11.2 which provides for Transitional Supervision, are written prison policies designed to guide the exercise of discretion, to classify inmates to appropriate risk levels and to protect public safety by assigning inmates to levels of confinement consistent with their public risk scores. Further, these prison directives are not penal statutes within the meaning of the ex post facto clause. Accordingly, changes in classification policy which provide that halfway house eligibility is now within 18 months of EOS or the VTP date, are changes which are not within the ambit of the ex post facto clause. Even discretionary policies which do not allow any such release for violent offenders are legitimate state policies designed to protect public safety. Because such policies are not penal statutes, but rather discretionary guidelines which may change from time to time, they are not within the meaning of the ex post facto clause. It is not reasonable for the plaintiff to argue that the Commissioner must exercise her discretion today, in October 2007, in the same manner as another Commissioner might have nearly 20 years ago in 1989. Plaintiff's misguided interpretation of the ex post facto clause would require Commissioner Lantz to ignore twenty years of correctional experience, changes in philosophy, changes in technology and other related changes in the management of convicted adult felons in correctional institutions. Changes in the exercise of discretion are not within the purview of the ex post facto clause, as was noted by Justice Scalia in his concurrence in Garner v. Jones, 529 U.S. at 259, [A]ny risk engendered by changes to the length of that period is merely part of the uncertainty which was inherent in the discretionary parole system, and to which respondent subjected himself when he committed his crime. It makes no more sense to freeze in time the Board's discretion as to procedures than it does to freeze in time the Board's discretion as to substance. Just as the Ex Post Facto Clause gives respondent no cause to complain that the Board in place at the time of his offense has been replaced by a new, tough-on-crime Board that is much more parsimonious with parole, it gives him no cause to complain that it has been replaced by a new, big-on-efficiency Board that cuts back on reconsiderations without cause.

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III. Plaintiff's Remaining Claims Are Meritless Plaintiff alleges, without any supporting evidence, in his memorandum at page four that there was a "general philosophy of utilizing community release to the fullest extent possible." He then points to ten anecdotal examples of inmates who had been selected by plaintiff for review. Plaintiff's evidence of these other inmates is both immaterial and irrelevant. Even if discretion was exercised liberally, and written criteria were waived, nothing in the ex post facto clause requires Commissioner Lantz to endanger public safety and diminish public confidence in the criminal justice system by reverting back to failed policies which jeopardized the safety and security of the community. As Justice Scalia noted, [I]t would be absurd to argue that a defendant would have an ex post facto claim if the compassionate judge who presided over the district where he committed his crime were replaced, prior to the defendant's trial, by a so-called "hanging judge." Discretion to be compassionate or harsh is inherent in the sentencing scheme, and being denied compassion is one of the risks that the offender knowingly assumes. Garner v. Jones at 258. Similarly, it is absurd to claim, as plaintiff does, that Commissioner Lantz must continue to exercise discretion, which as the anecdotal evidence shows, jeopardizes public safety by repeating the mistakes of the past. Plaintiff notes that inmates who committed crimes while on community release were re-released to endanger the public again. Inmates who were disciplinary problems or escapees, were repeatedly placed on SHR under the discretionary policies in place in 1989. The ex post facto clause is not implicated by the harsh exercise of discretion which limits community release to non-violent offenders or inmates who have 18 months or less on their sentences. Some of plaintiff's other claims are utterly silly and hardly merit a response. His mistaken belief that the Classification Manual is not authentic is a product of plaintiff's imagination and does not undercut the fact that present administrative directives state that an inmate must be within 18

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months of end of sentence or the VTP date to be eligible for possible consideration for a halfway house placement. Present policies promote the sound exercise of discretion based on present thinking, present technology, and with the foremost goal of public safety in mind. Reverting back to liberally exercised discretion under repealed statutes and DOC policies is an absurd interpretation of the ex post facto clause that would undermine both the safety of the public and public confidence in the criminal justice system. CONCLUSION For the foregoing reasons and for the additional reasons stated in the defendant's opening memorandum of law, the defendant's motion for summary judgment should be granted DEFENDANT Commissioner of Correction RICHARD BLUMENTHAL ATTORNEY GENERAL
Steven R. Strom BY:_____________________________
Digitally signed by Steven R. Strom DN: CN = Steven R. Strom, C = US, O = Office of the Attorney General, OU = Assistant Attorney General Date: 2007.09.25 16:04:41 -04'00'

Steven R. Strom Assistant Attorney General 110 Sherman Street Hartford, CT 06105 Tel: (860) 808-5450 Fax: (860) 808-5591 Fed Bar. No. ct01211 E-Mail: [email protected] CERTIFICATION I hereby certify that a copy of the foregoing was mailed this _____ day of September, 2007 to: William Connelly, #189009 Enfield Correctional Institution POB 1500 289 Shaker Rd. Enfield, CT 06082

Steven R. Strom ________________________________
Steven R. Strom Assistant Attorney General 10

Digitally signed by Steven R. Strom DN: CN = Steven R. Strom, C = US, O = Office of the Attorney General, OU = Assistant Attorney General Date: 2007.09.25 16:05:12 -04'00'