The The Charging FunctionCharging Function

of the of the ProsecutorProsecutorThe The Charging FunctionCharging Function

of the of the ProsecutorProsecutor

Dean Mary Galvin, Retired State’s AttorneyDean Mary Galvin, Retired State’s Attorney

Kevin T. Kane, Chief State’s AttorneyKevin T. Kane, Chief State’s Attorney

Sentencing and Parole Sentencing and Parole Review Task ForceReview Task Force

The Public ProsecutorThe Public ProsecutorThe Public ProsecutorThe Public Prosecutor

• 1705 - Connecticut First by Statute1705 - Connecticut First by Statute

• Replaced Private ProsecutorsReplaced Private Prosecutors

• Responsibility to Do JusticeResponsibility to Do Justice

The Charging FunctionThe Charging FunctionThe Charging FunctionThe Charging Function

3.8 Special Responsibilities Of the 3.8 Special Responsibilities Of the ProsecutorProsecutor

3.8 Special Responsibilities Of the 3.8 Special Responsibilities Of the ProsecutorProsecutor

The prosecutor should exercise his/her The prosecutor should exercise his/her discretion to file only those charges discretion to file only those charges which he/she considers to be which he/she considers to be consistent with the interests of justice. consistent with the interests of justice.

NDAA Prosecution NDAA Prosecution StandardsStandards

NDAA Prosecution NDAA Prosecution StandardsStandards

NDAA Charging StandardsNDAA Charging StandardsNDAA Charging StandardsNDAA Charging Standards

Factors which may be considered in the Factors which may be considered in the charging decision include:charging decision include:

Factors to ConsiderFactors to ConsiderFactors to ConsiderFactors to Consider

• a. The probability of conviction;a. The probability of conviction;

• b. The nature of the offense;b. The nature of the offense;

• c. The characteristics of the offender; c. The characteristics of the offender;

• d. Possible deterrent value of prosecution d. Possible deterrent value of prosecution to the offender and society in general;to the offender and society in general;

Factors to ConsiderFactors to ConsiderFactors to ConsiderFactors to Consider

• e. Likelihood of prosecution by another e. Likelihood of prosecution by another criminal justice authority;criminal justice authority;

• f. The willingness of the offender to f. The willingness of the offender to cooperate with law enforcement; cooperate with law enforcement;

• g. Aid to other criminal justice goals g. Aid to other criminal justice goals through non-prosecution;through non-prosecution;

• h. The interests of the victim;h. The interests of the victim;

Factors to ConsiderFactors to ConsiderFactors to ConsiderFactors to Consider

• i. Possible improper motives of a victim or i. Possible improper motives of a victim or witness;witness;

• j. The availability of adequate civil j. The availability of adequate civil remedies;remedies;

• k. The age of the offense;k. The age of the offense;

• l. Undue hardship caused to the accused;l. Undue hardship caused to the accused;

Factors to ConsiderFactors to ConsiderFactors to ConsiderFactors to Consider

• m. A history of non-enforcement of a m. A history of non-enforcement of a statute;statute;

• n. Excessive cost of prosecution in n. Excessive cost of prosecution in relation to the seriousness of the offense;relation to the seriousness of the offense;

• o. Recommendations of the involved law o. Recommendations of the involved law enforcement agency;enforcement agency;

Factors to ConsiderFactors to ConsiderFactors to ConsiderFactors to Consider

• p. The expressed desire of an offender to p. The expressed desire of an offender to release potential civil claims against release potential civil claims against victims, witnesses, law enforcement victims, witnesses, law enforcement agencies and their personnel, and the agencies and their personnel, and the prosecutor and his personnel, where such prosecutor and his personnel, where such desire is expressed after the opportunity desire is expressed after the opportunity to obtain advice from counsel and is to obtain advice from counsel and is knowing and voluntary; and knowing and voluntary; and

• q. Any mitigating circumstances.q. Any mitigating circumstances.

Diversionary ProgramsDiversionary ProgramsDiversionary ProgramsDiversionary Programs

Diversionary ProgramsDiversionary ProgramsDiversionary ProgramsDiversionary Programs

• Designed to suspend prosecution Designed to suspend prosecution

• Require education, treatment, community Require education, treatment, community service, or other programs service, or other programs

• Which, if completed successfully, will Which, if completed successfully, will result in the suspension of the charges result in the suspension of the charges

Alcohol Education Program (AEP)Alcohol Education Program (AEP)Alcohol Education Program (AEP)Alcohol Education Program (AEP)

• Operation of a vehicle or vessel under the Operation of a vehicle or vessel under the influence influence

• Operation by a person under age 20 in Operation by a person under age 20 in which the BAC is above .02which the BAC is above .02

• With no past MV Felonies or DUIWith no past MV Felonies or DUI

Accelerated Rehabilitation (AR)Accelerated Rehabilitation (AR)Accelerated Rehabilitation (AR)Accelerated Rehabilitation (AR)

• For 1For 1stst offenders on non-serious offenses offenders on non-serious offenses

• Cannot be used for:Cannot be used for:

- A or B Felony, except larcenyA or B Felony, except larceny

- Certain C FeloniesCertain C Felonies

- DUIDUI

- Any crime or MV violation resulting in the Any crime or MV violation resulting in the death of anotherdeath of another

Community Service Labor Community Service Labor Program (CSLP)Program (CSLP)

Community Service Labor Community Service Labor Program (CSLP)Program (CSLP)

• For drug offenders who have minimal or For drug offenders who have minimal or no prior drug convictions for possession no prior drug convictions for possession offensesoffenses

Drug and Alcohol Dependency Drug and Alcohol Dependency (Suspension of Prosecution)(Suspension of Prosecution)

Drug and Alcohol Dependency Drug and Alcohol Dependency (Suspension of Prosecution)(Suspension of Prosecution)

• For substance dependent defendants who For substance dependent defendants who are likely to benefit from treatmentare likely to benefit from treatment

Drug Education ProgramDrug Education ProgramDrug Education ProgramDrug Education Program

• To provide education on less serious drug To provide education on less serious drug offensesoffenses

Family Violence Education Program Family Violence Education Program (FVEP)(FVEP)

Family Violence Education Program Family Violence Education Program (FVEP)(FVEP)

• To provide treatment for family violence To provide treatment for family violence involving physical harm or threat of involving physical harm or threat of physical harm where the defendant is physical harm where the defendant is charged with D felonycharged with D felony

• Cannot be use for class A, B, or C Cannot be use for class A, B, or C feloniesfelonies

School Violence Prevention Program School Violence Prevention Program (SVPP)(SVPP)

School Violence Prevention Program School Violence Prevention Program (SVPP)(SVPP)

• For secondary school students with the For secondary school students with the use or threat of physical violence on use or threat of physical violence on school propertyschool property

Youthful Offender Program (YO)Youthful Offender Program (YO)Youthful Offender Program (YO)Youthful Offender Program (YO)

• For people aged 16 and 17 to avoid a For people aged 16 and 17 to avoid a record of convictionrecord of conviction

• Closed CourtroomClosed Courtroom

Persistent Offender Persistent Offender StatutesStatutes

Persistent Offender Persistent Offender StatutesStatutes

Authorized Felony SentencesAuthorized Felony SentencesAuthorized Felony SentencesAuthorized Felony Sentences

• Class AClass A

- Murder 25 to life (60)Murder 25 to life (60)

- All others 10 to 25All others 10 to 25

• Class BClass B

- 53a-55a 5 to 4053a-55a 5 to 40

- All others 1 to 20 *except for 5 specified All others 1 to 20 *except for 5 specified crimes where it is 50 to 20crimes where it is 50 to 20

Authorized Felony SentencesAuthorized Felony SentencesAuthorized Felony SentencesAuthorized Felony Sentences

• Class CClass C

- Most are 1 to 10 *except for section 53a-56a Most are 1 to 10 *except for section 53a-56a which is 3 to 10which is 3 to 10

• Class DClass D

- Most are 1 to 5 *except for specified offenses Most are 1 to 5 *except for specified offenses where it is 3 to 5 and 53a-216 where it is 5where it is 3 to 5 and 53a-216 where it is 5

• UnclassifiedUnclassified

- In accordance with statute defining the crimeIn accordance with statute defining the crime

Persistent Dangerous Felony Persistent Dangerous Felony Offender 53a-40Offender 53a-40

Persistent Dangerous Felony Persistent Dangerous Felony Offender 53a-40Offender 53a-40

• Sentence enhancement:Sentence enhancement:

- Not more than 40 years, or if two priors not Not more than 40 years, or if two priors not more than life imprisonmentmore than life imprisonment

Persistent Dangerous Sexual Persistent Dangerous Sexual Offender 53a-40Offender 53a-40

Persistent Dangerous Sexual Persistent Dangerous Sexual Offender 53a-40Offender 53a-40

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment and special A sentence of imprisonment and special parole which together constitute a life parole which together constitute a life sentencesentence

Persistent Serious Felony Offender Persistent Serious Felony Offender 53a-4053a-40

Persistent Serious Felony Offender Persistent Serious Felony Offender 53a-4053a-40

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment for the next more A sentence of imprisonment for the next more serious degree of felonyserious degree of felony

Persistent Serious Sexual Offender Persistent Serious Sexual Offender 53a-4053a-40

Persistent Serious Sexual Offender Persistent Serious Sexual Offender 53a-4053a-40

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment and special A sentence of imprisonment and special parole which together constitute a maximum parole which together constitute a maximum sentence for the next more serious degree of sentence for the next more serious degree of felonyfelony

Persistent Larceny Offender 53a-40Persistent Larceny Offender 53a-40Persistent Larceny Offender 53a-40Persistent Larceny Offender 53a-40

• Sentence enhancement:Sentence enhancement:

- A sentence for a class D felony (5 years)A sentence for a class D felony (5 years)

Persistent Felony Offender 53a-40Persistent Felony Offender 53a-40Persistent Felony Offender 53a-40Persistent Felony Offender 53a-40

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment for the next more A sentence of imprisonment for the next more serious degree of felony and at least 3 years serious degree of felony and at least 3 years to serve and 3 years of sentence may not be to serve and 3 years of sentence may not be suspended or reduced by courtsuspended or reduced by court

Persistent Offender of Crimes Persistent Offender of Crimes Involving Bigotry or Bias 53a-40aInvolving Bigotry or Bias 53a-40a

Persistent Offender of Crimes Persistent Offender of Crimes Involving Bigotry or Bias 53a-40aInvolving Bigotry or Bias 53a-40a

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment for the next more A sentence of imprisonment for the next more serious degree of misdemeanor (for a class A serious degree of misdemeanor (for a class A misdemeanor a sentence for a class D misdemeanor a sentence for a class D felony)felony)

Persistent Offender of Crimes Persistent Offender of Crimes Involving Stalking, Trespass, Involving Stalking, Trespass,

Threatening, Harassment, Violation Threatening, Harassment, Violation of a Protective Order or a of a Protective Order or a Restraining Order 53a-40dRestraining Order 53a-40d

Persistent Offender of Crimes Persistent Offender of Crimes Involving Stalking, Trespass, Involving Stalking, Trespass,

Threatening, Harassment, Violation Threatening, Harassment, Violation of a Protective Order or a of a Protective Order or a Restraining Order 53a-40dRestraining Order 53a-40d

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment for the next more A sentence of imprisonment for the next more serious degree of felony and at least 3 years serious degree of felony and at least 3 years to serve and 3 years of sentence may not be to serve and 3 years of sentence may not be suspended or reduced by courtsuspended or reduced by court

Persistent Operating while Under the Persistent Operating while Under the Influence- Felony Offender 53a-40fInfluence- Felony Offender 53a-40f

Persistent Operating while Under the Persistent Operating while Under the Influence- Felony Offender 53a-40fInfluence- Felony Offender 53a-40f

• Sentence enhancement:Sentence enhancement:

- A sentence of imprisonment for the next more A sentence of imprisonment for the next more serious degree of felonyserious degree of felony

Mandatory MinimumsMandatory MinimumsMandatory MinimumsMandatory Minimums

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

““Jessica’s Law” establishes new sentences Jessica’s Law” establishes new sentences for sex offenses against children under 13 for sex offenses against children under 13 years of age; years of age;

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• A new class A felonyA new class A felony of aggravated of aggravated sexual assault of a minor (victim under 13 sexual assault of a minor (victim under 13 years of age), with a mandatory minimum years of age), with a mandatory minimum term of imprisonment of 25 years for a first term of imprisonment of 25 years for a first offense, 50 years for any subsequent offense, 50 years for any subsequent offense; offense;

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• A MM of 5 years imprisonment for Risk of A MM of 5 years imprisonment for Risk of Injury to a Minor (section 53‑21) if the Injury to a Minor (section 53‑21) if the victim is under thirteen years of age;victim is under thirteen years of age;

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• The felony of enticing a minor (section The felony of enticing a minor (section 53a‑90) is a class B felony if the victim is 53a‑90) is a class B felony if the victim is under 13 years of age, with a MM term of under 13 years of age, with a MM term of imprisonment of 5 years for a first offense imprisonment of 5 years for a first offense and 10 years for a subsequent offense. and 10 years for a subsequent offense.

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• Employing a minor in an obscene Employing a minor in an obscene performance (section 53a‑196a) is a class performance (section 53a‑196a) is a class A felony with a MM term of imprisonment A felony with a MM term of imprisonment of 10 years. of 10 years.

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• Importing child pornography (section Importing child pornography (section 53a‑196c) and first degree possession of 53a‑196c) and first degree possession of child pornography (section 53a‑196d), child pornography (section 53a‑196d), both class B felonies, now each carry a both class B felonies, now each carry a MM term of imprisonment of 5 years.MM term of imprisonment of 5 years.

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• Possession of child pornography in the Possession of child pornography in the second degree, a class C felony, now has second degree, a class C felony, now has a MM term of imprisonment of 2 years.a MM term of imprisonment of 2 years.

Jessica’s LawJessica’s LawJessica’s LawJessica’s Law

• Possession of child pornography in the Possession of child pornography in the third degree, a class D felony, now carries third degree, a class D felony, now carries a MM term of imprisonment of one year. a MM term of imprisonment of one year.

BurglaryBurglaryBurglaryBurglary

• 11stst degree with a deadly weapon, explosive or degree with a deadly weapon, explosive or dangerous instrument 53a-101dangerous instrument 53a-101

- 5 years5 years

• 22ndnd degree with a firearm 53a-102a degree with a firearm 53a-102a

- 1 year1 year

• 33rdrd degree with a firearm 53a-103a degree with a firearm 53a-103a

- 1 year1 year

AssaultAssaultAssaultAssault

• 11stst degree 53a-59 degree 53a-59

- 5 years if a deadly or dangerous instrument is 5 years if a deadly or dangerous instrument is usedused

- 10 years if the victim is under 10 or a witness10 years if the victim is under 10 or a witness

• 11stst degree of the elderly, blind, disabled, degree of the elderly, blind, disabled, pregnant or mentally retarded 53a-59apregnant or mentally retarded 53a-59a

- 5 years5 years

AssaultAssaultAssaultAssault

• 22ndnd degree with a firearm 53a-60a degree with a firearm 53a-60a

- 1 year1 year

• 22ndnd degree of the elderly, blind, disabled, degree of the elderly, blind, disabled, pregnant or mentally retarded 53a-60bpregnant or mentally retarded 53a-60b

- 2 years2 years

• 22ndnd degree with a firearm of the elderly, blind, degree with a firearm of the elderly, blind, disabled, pregnant or mentally retarded 53a-60cdisabled, pregnant or mentally retarded 53a-60c

- 3 years3 years

The Charging FunctionThe Charging FunctionThe Charging FunctionThe Charging Function

• Difficult and ComplicatedDifficult and Complicated

• Requires Legal Experience and TrainingRequires Legal Experience and Training

• Impacts Victims, Convictions, Sentencing, Impacts Victims, Convictions, Sentencing, and Releaseand Release

DOC- July 1, 2007 StatisticsDOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Incarcerated Sentenced Population

Top Ten OffensesTop Ten Offenses

DOC- July 1, 2007 StatisticsDOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Incarcerated Sentenced Population

Top Ten OffensesTop Ten Offenses

VOP or CDVOP or CD 1,9571,957

Sale Hall./Narc.Sale Hall./Narc. 1,7061,706

Poss. of NarcoticsPoss. of Narcotics 771771

Robbery 1Robbery 1stst 762762

MurderMurder 538538

Assault 1Assault 1stst 518518

Burglary 3Burglary 3rdrd 490490

ConspiracyConspiracy 457457

Sexual Assault 1Sexual Assault 1stst 454454

Criminal AttemptCriminal Attempt 399399

DOC- July 1, 2007 StatisticsDOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Incarcerated Sentenced Population

Top Ten OffensesTop Ten Offenses

DOC- July 1, 2007 StatisticsDOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Incarcerated Sentenced Population

Top Ten OffensesTop Ten Offenses

"[The prosecutor] is in a peculiar and "[The prosecutor] is in a peculiar and very definite sense the servant very definite sense the servant

of the law. . . It is as much his duty to of the law. . . It is as much his duty to refrain from improper methods. . . as to refrain from improper methods. . . as to

use every legitimate means to bring use every legitimate means to bring about a just [conviction]." about a just [conviction]."

"[The prosecutor] is in a peculiar and "[The prosecutor] is in a peculiar and very definite sense the servant very definite sense the servant

of the law. . . It is as much his duty to of the law. . . It is as much his duty to refrain from improper methods. . . as to refrain from improper methods. . . as to

use every legitimate means to bring use every legitimate means to bring about a just [conviction]." about a just [conviction]."

Berger v. United States, 295 U.S. 78 (1935)Berger v. United States, 295 U.S. 78 (1935)