Attorney General's Opinion
Attorney General, Richard Blumenthal
September 20, 2007
Chairman, Board of Pardons and Paroles
This letter responds to your request for a formal opinion on “whether or not the Board of Pardons has the authority to commute a non-parole eligible offense, as defined by CGS § 54-125a(b)(1), to make it a parole eligible offense.” You state that “13 non-parole eligible murderers [have] petitioned the Board to commute their sentences to parole eligible. Of those 13 offenders, 11 do not have any term of probation or other form of community supervision after their discharge date. Of the 6 offenders that were sentenced in the 1980’s, their end of sentence date is rapidly approaching." Accordingly, you seek our opinion as to the Board’s legal authority when considering these applicants' pardon applications.
As discussed more fully below, the Board of Pardons and Paroles does not have the legal authority to commute a sentence which, by the plain language of
Public Act 04-234 created the combined Board of Pardons and Paroles (Board) as the successor agency to what had previously been two separate and distinct entities, the Board of Pardons and the Board of Paroles. See
In your letter, you ask if a pardons panel of the Board has the authority to consider whether to commute a parole ineligible sentence and to establish a conditional pardon, which commutes a certain period of time at the end of a definite sentence, making the person eligible to be considered for parole with whatever conditions you deem appropriate throughout the parole term.
It is our opinion that the Board of Pardons and Paroles does not have the legal authority to do so.
(a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the Board of Pardons and Paroles.
(b) Said board shall have authority to grant pardons, conditioned, provisional or absolute, for any offense against the state at any time after the imposition and before or after the service of any sentence.
(c) Whenever the board grants an absolute pardon to any person, the board shall cause notification of such pardon to be made in writing to the clerk of the court in which such person was convicted, or the Office of the Chief Court Administrator if such person was convicted in the Court of Common Pleas, the Circuit Court, a municipal court, or a trial justice court.
(d) Whenever the board grants a provisional pardon to any person, the board shall cause notification of such pardon to be made in writing to the clerk of the court in which such person was convicted. The granting of a provisional pardon does not entitle such person to erasure of the record of the conviction of the offense or relieve such person from disclosing the existence of such conviction as may be required.
Without question, the Board possesses broad power and wide discretion to grant pardons. The United States Supreme Court in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981), analyzed the power of the Board of Pardons under Conn. Gen. Stat. § 18-26 and concluded that “Connecticut's pardons statute contains neither a presumption in favor of pardon nor a list of factors to be considered by the Board of Pardons. Instead, the statute grants the board unfettered discretion in the exercise of its power. The statute offers only the 'mere hope' of pardon; it does not create a legitimate expectation of freedom and therefore does not implicate due process.” Dumschat, supra, at 462, quoting 618 F.2d 216, 219 (2nd Cir. 1980). Our own Supreme Court has endorsed this broad interpretation of the pardons power of the Board. See Missionary Society of Connecticut v. Board of Pardons and Paroles, 272
Notwithstanding the Board's broad power to grant pardons and commutations, both “conditioned and absolute" in most cases, the exercise of the pardon power to commute a parole ineligible sentence and transform it to a parole eligible sentence is barred by the express language of Conn. Gen. Stat. §54-125a(b)(1). That statute explicitly and particularly denies parole to those convicted of the offenses enumerated in the statute and is a specific limitation on the general pardon and commutation powers granted to the Board of Pardons and Parole. It is a "well-settled principle of statutory construction that specific terms covering a given subject matter will prevail over general language of another statute that might otherwise prove controlling." Board of Education v. State Board of Education, 278
If the legislature had intended to permit the Board to override the express language of 54-125a(b)(1), it could have amended § 54-130a using the phrase "notwithstanding any other provision of the general statutes," or some other explicit language. See Velez v. Commissioner of Correction, 250
Instead, Public Act 04-234 expanded the list of parole ineligible crimes adding "aggravated sexual assault in the first degree" to the list of parole ineligible offenses. Since the legislature chose to specifically increase the number of specific crimes to be excluded from consideration for parole in the same Public Act creating the Board of Pardons and Paroles, without giving explicit authority to the Board to ignore the mandate of § 54-125a(b)(1) that persons convicted of certain crimes never be paroled, it would not be reasonable to presume that parole ineligible offenses could be made parole eligible by the Board of Pardons and Paroles. Such an interpretation would render the provisions of
Accordingly, we conclude that a pardons panel of the Board of Pardons and Paroles does not have the legal authority to commute a sentence which is categorized as ineligible for parole so as to enable a person convicted of such offense to be eligible for parole.
Very truly yours,
1 Conn. Gen. Stat. §54-125a (b) (1) provides: “No person convicted of any of the following offenses, which was committed on or after