Connecticut Considers Three Strikes Law

by Martin Magnusson, Editor-At -Large for Criminal Justice

This summer, a gruesome crime shocked the small town of Cheshire, Connecticut. In the early morning hours of July 18, two men invaded the Petit family home. The two men held the Petit family hostage for several hours, robbed them, and killed three of them. The sole surviver was the family father. In the small state of Connecticut, it was one of the most heinous crimes in recent memory.
The Cheshire home invasion left many Connecticut residents concerned for their safety as well as that of their family members. Gun sales increased and the interest in installing security systems skyrocketed. Many Connecticut residents also sought to protect themselves and their loved ones through an online petition asking the state legislature to pass a “three strikes” law. More than 42,000 people have signed this petition thus far. The proposed law would eliminate judicial discretion and require life imprisonment for a third serious felony conviction.
The New York Times editorial page recently contended that such habitual offender laws comprise a misguided attempt at replacing discretion with hard-line rules:
The appeal of a “three strikes and you're out” law is understandable, but these laws have proven to be blunt instruments that cause more injustice than they prevent. In California, which has a particularly draconian law, a man who shoplifted $153.54 worth of videotapes was sent to jail for 50 years. These laws are not only overly harsh. They are enormously expensive, because of all of the prison cells that are needed to warehouse minor criminals who pose little threat to society, many of whom are elderly by the end of their sentence.

Community outrage, though, was not only fueled by the fact that the two suspects, Joshua Komisarjevsky and Steven Hayes, had twenty-one and seventeen felony convictions respectively. Both of them had also been released on parole earlier in the year. This precipitated calls not only for a three strikes law, but also for the State of Connecticut to severely circumscribe parole eligibility; Governor Jodi Rell indefinitely stopped the paroles of violent offenders this past Friday.
The most concerning issue in regard to the parole proceedings is that the Connecticut Board of Pardons and Paroles never received Mr. Komisarjevsky's sentencing transcript. Within that transcript, the presiding judge described Mr. Komisarjevsky as a calculating, “cold-blooded predator” who specialized in nighttime burglaries of homes that were occupied. Needless to say, this is precisely the sort of information that the Parole Board needs to have in front of it when it determines whether to release an inmate. Indeed, the New York Times editorial page goes on to note that the
Board of Pardons and Parole released Mr. Komisarjevsky despite having woefully incomplete information. That happens routinely in Connecticut, where for 10 years absurd fights over which department should pay photocopying costs kept criminal records from being shared. Had board members read the judge's characterization of Mr. Komisarjevsky's actions as “predatory” they might never have released him.
This state of affairs has gotten so bad that state Representative Bob Godfrey recently noted that “[w]e're almost using parchment paper and quill pens.” Many critics of proposed reforms contend that parole eligibility is not a proper focus of reform, but rather that reform should concern itself with the lack of inter-agency information-sharing.
The debate over three strikes laws is certainly not new. When California passed its three strikes law, critics contended that the law violated the Double Jeopardy Clause of the Constitution. The Supreme Court, though, has upheld the constitutionality of prior convictions as an aggravating factor in determining the severity of a sentence.
The Supreme Court has also held, in Ewing v. California, that three strikes sentences do not violate the Eighth Amendment prohibition against cruel and unusual punishment. Writing for the majority in Ewing, Justice O'Connor noted that the Supreme Curt does not
sit as a “superlegislature” to second-guess . . . policy choices. It is enough that the [s]tate . . . has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way . . . To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.
In the wake of these holdings, states have been left to decide whether three strikes laws constitute sound policy, which is what Connecticut now finds itself doing. In an opening move, the state legislature's judiciary committee recently held a hearing on sentencing and parole reform. The session was well-attended; it filled the largest hearing room in the Legislative Office Building in Hartford. Many of those at the hearing were in favor of more severe sentencing and parole policies. State GOP chairman Christopher Healy characterized the current state of Connecticut criminal justice as one in which “criminals are given the benefit of the doubt and the door, rather than the sound of bars closing behind them.” Others, such as state representative Mike Lawlor, are hoping that the legislature will focus on providing court and prison officials with the necessary tools to identify dangerous offenders before they are released on parole. As seen in the case of Mr. Komisarjevsky, one of the most essential tools is simple access to sentencing transcripts.